![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Upper Tribunal (Immigration and Asylum Chamber) |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just ÂŁ5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Upper Tribunal (Immigration and Asylum Chamber) >> LH and IP (gay men: risk) (CG) [2015] UKUT 73 (IAC) (18 February 2015) URL: https://www.bailii.org/uk/cases/UKUT/IAC/2015/73.html Cite as: [2015] UKUT 73 (IAC) |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
Upper Tribunal
(Immigration and Asylum Chamber)
LH
and IP (gay men: risk) Sri Lanka
CG [2015] UKUT 00073 (IAC)
THE IMMIGRATION ACTS
Heard at Field House |
Determination promulgated |
on 6 - 8 August 2014 |
|
|
………………………………… |
Before
UPPER TRIBUNAL JUDGE GLEESON
UPPER TRIBUNAL JUDGE MACLEMAN
Between
LH & IP
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For the Appellants: Mr I Palmer and Ms S Pinder, instructed by Fadiga & Co, Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer
(1)
Having
regard to the provisions of articles 365 and 365A of the Sri Lankan Penal Code,
gay men in Sri Lanka
constitute a particular social group.
(2)
‘Gay men
in civil partnerships’ in Sri Lanka
do not constitute a particular social group
for the purposes of the Refugee Convention. The Sri Lankan authorities’ failure to
recognise alternative marital and quasi-marital statuses such as civil
partnership or homosexual marriage which are available in other countries of
the world does not, without more, amount to a flagrant breach of core human
rights.
(3)
Applying
the test set out by Lord Rodger in the Supreme Court judgment in HJ (Iran) & HT (Cameroon) v
Secretary of State for the Home Department [2010] UKSC 31, in general the treatment of gay men
in Sri Lanka
does not reach the standard of persecution or serious harm.
(4)
There is a
significant population of homosexuals and other LGBT individuals in Sri
Lanka
, in particular in Colombo. While there is more risk for lesbian and
bisexual women in rural areas, because of the control exercised by families on
unmarried women, and for transgender individuals and sex workers in the cities,
it will be a question of fact whether for a particular individual the risk
reaches the international protection standard, and in particular, whether it
extends beyond their home area.
(5) Where a risk of persecution or serious harm exists in an appellant’s home area, there may be an internal relocation option, particularly for individuals returning via Colombo from the United Kingdom.
DETERMINATION AND REASONS
Anonymity
1. An anonymity direction remains in place unless or until this Tribunal, or any other appropriate Court, directs otherwise. No report of these proceedings shall directly or indirectly identify the appellants. Failure to comply with this direction could amount to a contempt of court.
Background
2. The appellants are citizens of Sri
Lanka
who entered the UK as students, LH on 2 February 2011 and IP on 17
December 2010. They first met here, and entered into a civil partnership on 29
November 2011. The respondent accepts that the appellants are gay and that
they are civil partners, a status not recognised in
Sri Lanka
. On 2 February 2012 they applied for
leave to remain in the UK, outside the requirements of the Immigration Rules,
on the basis of their private and family life with each other pursuant to
Article 8 ECHR. The respondent considered that removal of the appellants to
Sri
Lanka
would not be a disproportionate interference with their private and
family life and refused both applications by letters dated 12 April 2012. There
are currently no removal directions.
3. The appellants have not made an asylum or humanitarian protection application at an Asylum Screening Unit, but in their grounds of appeal they included Refugee Convention and humanitarian protection grounds in addition to the principal Article 8 ECHR claim. The Refugee Convention reason relied upon by these appellants is membership of a particular social group, either as gay men, or as gay men in a civil partnership. The appellants in their appeals to the First-tier Tribunal also invoked the humanitarian protection provisions in the Immigration Rules at paragraph 339C. Again, that application was not made properly to the Asylum Screening Unit but for clarity, we have nevertheless dealt with it in this determination.
Procedural history
4. First-tier Tribunal Judge Parkes
dismissed the appellants’ appeals in a determination promulgated on 20 July
2012. Upper Tribunal Judge Allen set that determination aside by a decision
dated 30 November 2012, for inadequacy of reasoning regarding the risk to them
on return to Sri Lanka
.
5. The appeals were identified for
possible country guidance on the risk to gay men in Sri Lanka
, with particular
reference to any difference arising out of civil partnership status. There is
no current reported authority on the risk to gays or LGBT persons
in
Sri Lanka
, or in relation to civil partnership. We have had regard to UNHCR guidance
as to the best practice in referring to those with same-sex preferences given
on 23 October 2012 in the UNHCR Guidelines on International Protection No. 9
– Claims to Refugee Status based on Sexual Orientation and/or Gender Identity
within the context of Article 1A(2) of the 1951 Convention and/or its 1967
Protocol relating to the Status of Refugees. The Guidelines
recommend the use of “LGBTI” [lesbian, gay, bisexual, transgender and intersex]
and its component terms in preference to “homosexuals”. Wherever possible in
this determination we have followed that guidance.
6. We are obliged to both sides for their care and effort in presenting the case. There was no significant difference between them regarding the legal framework within which we have to reach our decision, and before the hearing, they had agreed a list of possible issues for the Upper Tribunal, pursuant to directions.
7. The determination which follows takes
into account all of the evidence and submissions, including the country
documents listed at Appendix A and summarised in Appendix B. We have both
contributed to the determination. We are aware that since the hearing of these
appeals, there have been elections in Sri Lanka
and that former President
Rajapakse and his family are no longer in power. However, it has not been
suggested that there is any significant difference in the treatment of LGBT
individuals as yet. Any future change would require further country guidance.
The issues
8. In all cases where the test set
out by Lord Rodger in the Supreme Court judgment in HJ (Iran)
& HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 [HJ and HT] test applies, it is necessary to make
a finding as to the relevant sexual orientation of the individual in question.
In the present appeals, since the parties have entered into a civil
partnership, the respondent does not dispute their homosexual orientation and
we accept that they are two gay men who entered the United Kingdom as
students. Both are Sinhalese citizens of Sri Lanka
. The parties proposed that we formulate
the country guidance issues as follows:
Refugee claim/humanitarian protection
(1) In the context of refugee claims of Sri Lankan nationals, do gay men constitute a particular social group for the purposes of the Convention?
(2) In the context of refugee claims of Sri Lankan nationals, do gay men in civil partnerships constitute a particular social group for the purposes of the Convention?
(3) Applying the test set out by Lord Rodger in the Supreme Court judgment in [HJ and HT] at paragraph 82:
(i) Does the background
evidence demonstrate that a gay man who lives openly in Sri
Lanka
is liable to be persecuted?
(ii) Does
the background evidence demonstrate that gay men in civil partnerships who live
openly as couples in Sri Lanka
are liable to be persecuted?
(iii) In the context of refugee claims of Sri Lankan gay men/gay men in civil partnerships, what form, if any, would the persecution take?
(iv) Would
the appellants themselves live openly as gay men/as gay men in a civil
partnership if they returned to Sri Lanka
?
(v) Would they live as gay men/gay men in a civil partnership discreetly in order to avoid persecution?
(vi) If they would live discreetly, why would they do so?
(4) In light of the conclusions to the issues listed above, if the appellants do not qualify for protection under the Refugee Convention do they qualify for a grant of humanitarian protection under paragraph 339C of the Immigration Rules?
Article 8 ECHR
(5) In light of the appellants’ civil partnership, do they enjoy family life within the meaning of Article 8 ECHR?
(6) Would
it be a flagrant breach of the appellants’ right to respect for family life if
removed to Sri Lanka
in circumstances where it can be demonstrated that civil
partnerships are not recognised in law and there exist other forms of societal
and cultural discrimination against such partnerships?
9. The questions set by Lord Rodger in HJ and HT are mainly factual, with reference to the particular circumstances of individual appellants. We observe that the issues identified conflate the country guidance needed with the factual matrix in relation to these appellants and the remedy sought. Issues (3)(v) and (vi) appear to overlap. While the framing of the issues has been a useful exercise, when giving our guidance we have done so more concisely, reserving questions of fact and outcome to the consideration of the individual appeals.
10. The only one of the HJ/HT
questions which is suitable for examination as country guidance is whether, on the
available evidence, the Tribunal is satisfied that gay men, or if appropriate,
other LGBTIQ individuals, living openly in Sri Lanka
would be liable to
persecution or serious harm and thus entitled to international protection. The
remaining factual questions will be answered, in relation to these appellants,
by reference to the answer to that question. There is no significant
distinction between family and private life in these appeals.
11. That is the basis on which we approached the evidence (written and oral) and the submissions before us.
The legal framework
12. The appellants invoke the protection of the Refugee Convention and also of the ECHR. The Refugee Convention definition, and those in Articles 3 and 8 ECHR are well known and we do not need to repeat them here.
13. In relation to humanitarian protection, the appellants rely on the Charter of Fundamental Rights of the European Union, and EU Council Directive 2004/83/EC (“the Qualification Directive”). Article 9(1)(a) of the Qualification Directive requires acts of persecution to be ‘sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2)’ of the ECHR, and Article 9(1)(b) includes ‘an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner’ as that in Article 9(1)(a).
14. The definition of persecution in the Qualification Directive at Article 9(2) is not exhaustive, but includes the following:
“9(2) Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory measure;
(c) prosecution or punishment which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment; …
(f) acts of gender-specific or child-specific nature.”
The criminal law in
Sri Lanka
15. Homosexual activity, or the
procurement thereof, is illegal in Sri Lanka
. The Penal Code of
Sri Lanka
provides at section 365:
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be punished with fine and where the offence is committed by a person over 18 years of age in respect of any person under 16 years of age shall be punished with rigorous imprisonment for a term not less than 10 years and not exceeding 20 years and with fine and shall also be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for injuries caused to such person.
And at s. 365A (introduced by the Penal Code (Amendment) Act (No. 22 of 1995):
Any person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be guilty of an offence, and shall be punished with imprisonment of either description, for a term which may extend to two years or with fine or with both and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for the injuries caused to such person.
16. It is common ground that these
provisions have the effect of criminalising homosexual conduct; that s.365
dates from before Sri Lanka
’s Independence in 1948; but that there have been no prosecutions
since Independence. The appellants argue that even without prosecution, the
indirect consequences of these provisions may contribute to persecution or
ill-treatment, and may be relevant also in the Article 8 ECHR assessment, if it
can be shown that they impact on the ability of homosexual or LGBTI
individuals, singly or in couples, to maintain their private and family life.
17. We begin by reviewing the country
evidence before us, before proceeding to consider the individual situation of
these appellants in that context. The country background evidence before the Upper
Tribunal runs to almost 600 pages in two bundles, and is summarised, so far as
relevant to the issues in these appeals and the position of LGBT individuals in
Sri Lanka
, at Appendix B below. A full list of all the documents before us
appears in Appendix A. Even before the existence of civil partnerships, and now
gay marriages, it was accepted that a same-sex relationship in appropriate
circumstances would constitute family life under Article 8 ECHR, with or
without the addition of the discrimination protection in Article 14 ECHR (see,
for example, Schalk & Kopf v Austria (30141/04) (22 November 2010), [2010] ECHR 1996 ;
Vallianatos & Others v Greece (29381/09 & 32684/09) (7 November
2013), [2013] ECHR 1110 ; and the judgment of Lord Justice Sedley in Krasniqi v SSHD [2006] EWCA Civ 391). The capability to register civil partnerships, and now to
marry, puts the question beyond dispute. The respondent has not sought to
suggest that the parties here do not have family life together.
Particular social group
18. We have considered the risk on return
to Sri Lanka
for gay men, and we are satisfied, having regard to the Supreme Court judgment in HJ (Iran) and HT (Cameroon)
v Secretary of State for the Home Department [2010] UKSC 31 that it is correct to treat gay men in
Sri
Lanka
as a particular social group. We shall also make some observations on
the evidence concerning lesbians and transgender individuals in
Sri
Lanka
which has been presented to us.
19. Following the judgment of the Supreme Court in HJ and HT, it is established that homosexuals are capable of being a particular social group within the meaning of the Refugee Convention. At paragraph 65 in the opinion of Lord Rodger in, he summarised the basis of protection for members of a particular social group under the Refugee Convention thus:
“65. …so far as the social group of gay people is concerned the underlying rationale of the Convention is that they should be able to live freely and openly as gay men and lesbian women, without fearing that they may suffer harm of the requisite intensity or duration because they are gay or lesbian. Their home state should protect them and so enable them to live in that way. If it does not and they will be threatened with serious harm if they live openly, then most people threatened with persecution will be forced to take what steps they can to avoid it.”
The HJ and HT analysis is reflected in issue (3) at paragraph 9 above.
20. In X, Y and Z v Minister voor Immigratie en Asiel v Hoog Commissariaat van de Verenigde Naties voor de Vluchtelingen [2013] EUECJ C-199/12, the Court of Justice of the European Union held that where a practice, such as homosexuality, was made illegal by the laws of a particular state, that criminalisation of itself would support a finding that the group whose actions were criminalised were a particular social group. Whether the particular social group so identified was at risk of persecution would depend first on whether the state in question enforced the legislation, and if not, would be a question of fact as to the risk from other non-State actors of persecution. The CJEU summarised its findings thus:
“1. Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target gay men, supports the finding that those persons must be regarded as forming a particular social group.
2. Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.
3. Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.”
Are civil partners or persons in gay
marriages a particular social group in Sri Lanka
?
21. Although civil partnerships and gay
marriages are not recognised in the law of Sri Lanka
, we are not persuaded that
it is helpful further to narrow the proposed particular social group beyond
that of gay men, or where appropriate, LGBT individuals. There is no definition in the Refugee
Convention of what is meant by particular social group, but Article 10 of the Qualification
Directive seeks to define particular social group:
“10. Reasons for Persecution
1. Member States shall take the following elements into account when assessing the reasons for persecution:
…
(d) a group shall be considered to form a particular social group where in particular:
- members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
- that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article; ...”
22. However, the couple will be removed
together and whether the failure of the Sri Lankan authorities to recognise
civil partnerships itself engages Article 3 or Article 8 ECHR is doubtful. The
evidence before us does not show that those who have entered abroad into gay
marriages or civil partnerships have a distinct identity in Sri
Lanka
. Nor, arguably, is that status an unchangeable characteristic, though
the parties of course intend it to be so. We have therefore asked ourselves
whether the status, of itself, is ‘so fundamental to identity and conscience
that a person should not be forced to renounce it’. Again, the evidence before
us is that the Sri Lankan state simply does not engage with the status of civil
partner at all. Individuals in such relationships are not forced to renounce
them: the status is ignored. There is no provision on official forms for it,
but it continues to exist.
23. Extraterritorial Article 8 arguments must reach a high standard. In EM (Lebanon) v SSHD [2008] UKHL 64, the House of Lords considered the Article 8 rights of a mother who, if returned to Lebanon with her child, would be required to relinquish custody to its father, pursuant to Shari’a law. In his opinion, Lord Hope said that the breach feared must be flagrant, ‘destroying or nullifying the family life that they have enjoyed together’, with reference to the decision of the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31 and D v United Kingdom [1997] ECHR 25:
“7. It seems to me that the Strasbourg court's jurisprudence indicates that, in the absence of very exceptional circumstances, aliens cannot claim any entitlement under the Convention to remain here to escape from the discriminatory effects of the system of family law in their country of origin. …
15. The guidance that is to be found in these decisions indicates that the Strasbourg court would be likely to hold that, except in wholly exceptional circumstances, aliens who are subject to expulsion cannot claim an entitlement to remain in the territory of a Contracting State in order to benefit from the equality of treatment as to respect for their family life that they would receive there which would be denied to them in the receiving state. … On a purely pragmatic basis the Contracting States cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention.
16. How then can one distinguish between those cases where a violation of articles 8 and 14 that results from applying Shari'a law will be flagrant, from those where it will not? …[In this appeal] the complaint is about the effects of discriminatory family law on the relationship that exists between individuals. It has not been suggested in this case that there is a risk that the application of the Shari'a law would result in persecution of the appellant approaching the level prescribed by article 3. So that check as to whether a flagrant breach has been established cannot be relied on in the assessment.
17… [T]he key to identifying those cases where the breach of articles 8 and 14 will be flagrant lies in an assessment of the effects on both mother and child of destroying or nullifying the family life that they have shared together. The cases where that assessment shows that the violation will be flagrant will be very exceptional. But where the humanitarian grounds against their removal are compelling, it must follow that there is an obligation not to remove. The risk of adding one test to another is obvious. But in the absence of further guidance from Strasbourg as to how the flagrancy test is to be applied in article 8 cases, I would adopt that approach in this case.”
24. There were similar facts in SS (Malaysia) v SSHD [2013] EWCA Civ 888, where the Malaysian appellant’s main concern was that her son, born in 2006, should continue to be brought up as a Catholic and not, as his father wished, as a Muslim. It was most likely that in Malaysia he would be allowed to live with her until he was about 15, but she would not be allowed to bring him up as a nominal Christian. Relying heavily on EM (Lebanon), Lord Justice Moore-Bick, with whom the other judges agreed, said this:
“17. The real complaint … is that the courts of the appellant’s own country resolve disagreements relating to the religious upbringing of children in a way which differs from our own and which she finds uncongenial. To return her and her son … would not in my view amount to a flagrant denial of her Convention rights or those of her son; nor would it be contrary to his best interests.”
25. For the purposes of these appeals, we
are not satisfied on the evidence before us that the Sri Lankan state’s failure
to recognise the appellants’ status as civil partners has been shown to be
sufficiently flagrant of itself to destroy or nullify their family life: on
the contrary, if removed they will be removed together and the status will
continue to exist, albeit not recognised in Sri Lanka
. We do not consider
that individuals whose civil partner status or status as married homosexuals is
not reflected in their legal status in their country of origin form a separate
particular social group or that Article 8 ECHR is engaged by that aspect of the
factual matrix alone.
Country evidence
The Equal Ground reports
26. Equal Ground is an organisation in Sri
Lanka
which supports LGBTI persons there. Its Executive Director is Ms
Rosanna Flamer-Caldera. Ms Flamer-Caldera uses the abbreviation LGBT (lesbian,
gay, bisexual and transgender) in her report, but in her oral evidence, she
also used LGBTI and sometimes LGBTIQ. For the purpose of the individual
appellants here, there is no relevant difference, since they are both gay men.
27. Equal Ground’s reports are pivotal in this case, since they are accepted and referenced in the US State Department Report, FCO and UKBA evidence, as well as that of the Canadian IRB and the international NGOs. Ms Flamer-Caldera’s evidence also overlaps significantly, if not entirely, with that of Mr Guruparan.
28. Several of Equal Ground’s public
reports appear in the bundle: an undated report entitled “Struggling against
homophobic violence and hate crimes” based on interviews with 109 individuals
in 13 districts of Sri Lanka
during April-June 2011; a report dated 9 December
2012 entitled “Towards a lesbians, gays, bisexuals and transgendered (LGBT)
stigma and discrimination index for
Sri Lanka
” (the ‘Pilot Study’), based on
interviews with 119 persons known to Equal Ground; a January 2013 situation
analysis entitled “Strengthening of legal protection for LGBT in
Sri Lanka
:
road to decriminalization” and a report for the UNHCR General Council in March
2014 entitled “Human rights violations against lesbian, gay, bisexual and
transgender people in
Sri Lanka
: a shadow report”.
29. The reports all set out the legal
framework and the criminal penalties available for same-sex sexual activity in Sri
Lanka
. As they cover much of the same ground, the Equal Ground background
evidence can be summarised together. The Equal Ground reports acknowledge that
there have been no successful prosecutions and indeed, in 50 years of the Sri
Lankan state, hardly anyone has been charged. Examples are given of repression
of lesbian and bisexual women who were forced by their families to marry men;
of pressure on Equal Ground’s partner organisation when it tried to run a
HIV/AIDS workshop; and of attacks on transgender individuals working in the sex
industry or appearing in public dressed as a member of their new gender
identity group. There was marginalisation and discrimination against LGBTIQ
individuals at school with the result that many did not complete their
education. The former President Rajapaksa had personally removed from his draft
human rights action plan any mention of legalising homosexuality. The reports
note that while there are Pride activities in
Sri Lanka
, there are no public
marches.
Miss Rosanna Flamer-Caldera’s evidence
30. This witness is the executive director
of Equal Ground. Ms Flamer-Caldera’s November 2013 report for these appellants
discusses the criminalisation of same sex behaviour in Sri Lanka
; instances of
police victimisation of gay men, including examples of rape by the police
(derived from a report by an Equal Ground field officer); the government’s
intolerance of LGBT people, and its reluctance to establish non-discriminatory
remedies; the hidden status of lesbian and bi-sexual women, who risk having
their relationships thwarted and being forced into heterosexual marriages by
their parents; blackmail, stigmatisation; discrimination in access to work,
health services and education; impunity for crimes committed against LGBT
individuals, who fear reporting to the police and are subject to further
attacks if they do; incitement of homophobia in the media; and state harassment
of LGBT human rights defenders, including CID pressure on field activities,
amounting to a gagging order. In its final paragraph the report says:
Under the circumstances described above, it is our opinion that LGBT persons face insurmountable opposition from the government, media and law enforcement agencies. LGBT persons are being forced underground and into the closet, interventions on HIV/Aids and other health related issues for the LGBT community are being stopped or hampered and those who perpetrate crimes against LGBT persons go unpunished.
31. We turn now to consider the evidence
prepared by Ms Flamer-Caldera in these appeals, and the oral evidence she gave.
Her report is dated November 2013, and begins by summarising the relevant
international Conventions and the criminalisation of same-sex activity in Sri
Lanka
. There had been an attempt to repeal the relevant provisions in 1995
but the effect was worse, not better, since the word ‘males’ in the original
text was replaced by ‘persons’, thereby criminalising lesbian as well as
homosexual sexual activity. The report states that there is no right to privacy
in the Sri Lankan constitution. The report confirmed that there had been no
prosecutions of gay men or lesbians under sections 365 and 365A, but its effect
was to provide a tool for harassment of the LGBT community such that its
members were afraid to report incidents of violence and other violations to the
police, for fear of being further stigmatised and victimised by the police.
32. Ms Flamer-Caldera’s report gave a number of examples of problems which had occurred in the writer’s knowledge:
(ii) in 2009, a homosexual member of Equal Ground had felt unable to report to the police the theft by his boyfriend of his Apple laptop;
(iii) in 2010, the Equal Ground offices were burgled, but they did not report the burglary to the police for fear of ‘systematic harassment’ from the police once the office location was known;
(iv) LGBTIQ individuals were unable to access proper health care for fear of disclosing their sexual orientation and/or gender identity. They feared that health care personnel would treat them indifferently, or with disdain. An example was given of a female to male transsexual who, as reported in an Equal Ground Field Officer report in October 2013, had a pain in the night, apparently while in hospital, and vomited all over his bed. Nobody came when he cried out for help, and in the morning, a male head nurse and minor staff took off the sarong he was wearing “to examine my genitals”. Difficulty in interaction with hospital staff had led to an increase in HIV infections amongst gay men and bisexuals from 11% in 2011 to 15% in 2013;
(v) At school, bullying, marginalisation and discrimination led many LGBTIQ individuals to drop out of education. An example was given, from the same Field Officer report of October 2013, of a female to male transsexual who had faced problems and school, in the workplace and in society, because she insisted on dressing and behaving as a boy.
(vi) Another example, from an Equal Ground Field Officer report in August 2013, was of a bisexual male who, some time earlier when he was 16 years of age, had been raped by two senior students in his school toilets. No one was there to help him.
33. Equal Ground had submitted detailed
reports regarding the situation of LGBT individuals in Sri
Lanka
to inform the UNHCR’s Universal Periodic Review (the UPR) in 2008 and
2012. The 2008 UPR had been disappointing, in that it failed to include any
observations on the position of LGBT individuals. In 2012, Equal Ground
submitted a further three reports to the UNHCR for the UPR, and in that year, Canada
and Argentina supported calls for the decriminalisation of homosexuality in
Sri
Lanka
. Equal Ground had been invited to attend meetings before and after the
publication of the UPR. During those meetings, the Sri Lankan President’s
Special Envoy to Geneva, the Honourable Mahinda Samarasinghe, and the Attorney
General, and other civil society figures had told Equal Ground categorically
that homosexuality would never be decriminalised in
Sri Lanka
. The Sri Lankan
government’s current action plan on human rights contained no proposal for
legalising homosexuality, the President having personally removed it from the
draft.
34. Examples were given of repression of
lesbian and bisexual women in Sri Lanka
by their families: one woman was
locked up and forced to marry a man eight years younger than she was, once her
family knew of her orientation; another was refused permission to work and not
allowed to use her mobile phone or contact her girlfriend; and a third, who had
been living with her female partner and caring for her ailing mother, was
forced after her mother’s death to marry a man, on pain of losing all the
property bequeathed to her. The woman married as her brother insisted: her
partner killed herself. There was an increased rate of self-harm by lesbian
women, due to “internalised homophobia” and they were also vulnerable to
blackmail.
35. Internalised homophobia and self-harm was an issue for LGBT individuals in general. All LGBT individuals suffered discrimination in access to work, health services and education.
36. Working from YouTube interviews, the
report gave examples of treatment meted out to a graduate student working on a
Masters’ thesis on Safer Sex in Galle, in southern Sri Lanka
, who was
interviewing several men in a public place. He was accosted by police, and
they were arrested and several of them beaten. The researcher was slapped and
threatened with years in jail for ‘promoting homosexuality’. He was thrown
into a cell with such force that he fell and damaged his ankle. An effeminate
man who was being interviewed by the researcher was anally raped with a wooden
stick by three police officers in the same incident. Another YouTube interview
recorded police harassing two homosexual men who were accused of having sex in
a public lavatory in Colombo; the police arrested them, called them derogatory
names, and demanded a bribe to release them.
37. The media was hostile to the LGBT
community; an article in the July 2010 Sri Lankan Daily Mirror deplored moves
to promote homosexuality and to treat heterosexuality as outdated. Unnamed
public figures were accused of turning heterosexuals gay, and the article
concluded that “the country can do well without these undesirable elements”. A
Sinhalese newspaper, The Rivera, had published a series of articles every
weekend for a month (in context, it seems to have been September 2011)
asserting that the LGBT community was “harming the cultural decencies and
morality of Sri Lanka
” and planning to open 24 homosexual centres in all
districts of the island, with “the ulterior motive of harming the cultural
decencies and morality of
Sri Lanka
”. The articles related to the CoJ, warning
parents to protect their sons, equating homosexuality with paedophilia. CoJ
had subsequently closed down and no longer operated.
38. Pleas to decriminalise homosexuality continued to fall on deaf Government ears. Government controlled newspapers and blogs contained hate inciting and homophobic articles, including attacks on Radio Neth FM by clergymen in September 2013. On 17 August 2013, Lakbima (a Sinhalese newspaper) made an inflammatory criticism of a workshop held in Anuradhapura by a partner organisation of Equal Ground, which had been authorised by the Ministry of Health and which in reality, far from being an attempt to brainwash children to be homosexual, was a peer educator’s workshop on MSM (men seeking men) and HIV/AIDS.
39. On 10 December 2012 and in early
February 2013, the Women and Children’s Bureau of the Sri Lankan police made
presentations on the increasing problem with child abuse in Sri
Lanka
, which they stated was increasing because of the growing homosexual
culture. The underlying suggestion was, again, that gay men are all
paedophiles. Equal Ground was specifically identified, along with Ms
Flamer-Caldera, as being responsible for spreading homosexuality in
Sri
Lanka
, and by implication, promoting paedophilia.
40. Ms Flamer-Caldera gave evidence to us by video link from Australia. In examination-in-chief further to her report, she was questioned firstly about the closure in late 2011 of another LGBT organisation “Companions on a Journey” (CoJ). Ms Flamer-Caldera was unaware of the full details; her understanding was that the closure of CoJ was not directly persecutory but was related to the executive director being suspected of embezzlement of funds, as a result of which the Sri Lankan CID went to CoJ’s office to investigate its finances. The incident was “blown out of proportion” by the press who made insinuations about sexual behaviour in the office and allegations of paedophilia, based on CoJ’s office being situated next to a boys’ school. The organisation closed its doors and the staff members were left with no resources. The director and his partner disappeared.
41. Ms Flamer-Caldera explained that Equal
Ground’s activities in the field in Sri Lanka
are mainly centred on women’s
rights and HIV, but also related to commercial sex workers in the LGBT
community. In one incident a field officer was visited by the CID and told not
to hold workshops discussing homosexuality or the Penal Code. As a result,
Equal Ground suspended those planned activities.
42. Over the last ten years, annual
celebrations had been held in Sri Lanka
by LGBTI persons in
Sri
Lanka
(‘Pride’ events) which Equal Ground was instrumental in organising.
Sri Lankan Pride events were not public street parades as in other countries:
the organisation had to be careful about where to hold them. During the first
few years, Pride events were held on public parts of the beach, but there was
trouble in 2010 when a disruptive mob threw sand and stones. Since then the
events have taken place on the private beach of a hotel where the management is
very supportive. All events were held now in secure locations which could not
be raided or targeted by extremist groups. Equal Ground was careful to make
sure that friendly High Commissions and heterosexual persons took part in Pride
events, so that any police raid would give rise to a lot of questions. During
the last year, all Pride events except one were held at the German Cultural
Institute, i.e. “on German soil”. The other was held on the private beach of a
hotel. Events in 2014 attracted about 2000 people. There were more events in
2013, including a drag fashion show attended by about 400-450 people.
43. The Secretary of State’s assertion
that gays were becoming more visible in Sri Lanka
was put to Ms Flamer-Caldera
for comment. She believed that to be so, mainly due to advocacy of LGBT
rights, but with visibility came greater intimidation and violence. The risk
to those who were openly gay in
Sri Lanka
was not always the same. For people
with money, it did not matter very much. The majority, with modest or low
income, suffered the most. All gays, regardless of their financial status,
suffered some discrimination throughout life but the well-off were much better
able to cope. Ms Flamer-Caldera’s own position was highly visible, but she had
not been detained or harassed. She could not fully explain why, but felt very
fortunate. Although very vocal, she had excellent relations with Embassies and
High Commissions of countries such as the UK, Canada, USA
and Norway. Ms Flamer-Caldera was from a prominent family. Nevertheless, she
was nervous at times, particularly when travelling through the airport, where
human rights defenders were often arrested.
44. Ms Flamer-Caldera was referred to a Pilot
Study prepared by her organisation, entitled “Towards an LGBT stigma and
discrimination index for Sri Lanka
”. She thought the number of respondents on
which the study was based was about 130. As to the examples quoted in her
report, the witness said that she used only cases which she could substantiate,
by which she meant that if information had been obtained through a third party,
it would be cited only if Equal Ground could contact the victim. Hearsay
evidence was not included in the study. The sample group were people who were
“out”, at least to Equal Ground, though not necessarily to their families. The
report showed 23 instances in that small group where non-heterosexuals were
living together, that is to say, just over 30% of those in the study group. Ms
Flamer-Caldera considered that the 30% would normally be two people living
together under the guise of friendship, rather than openly. Her interpretation
of the statistics was that it was possible for 2 gay men to live together, but
only so long as they did not disclose their relationship. By non-disclosure
she meant that their relationship would not be known to a landlord, who would
be unlikely to want to rent to a homosexual couple. Asked about difficulties
which gay men might have if they did disclose their sexuality, Ms
Flamer-Caldera stated that she knew one person who was openly gay, who worked
as an official in the Ministry of Foreign Affairs, and who had managed to get
by without hiding his sexuality.
45. In cross-examination, Mr Whitwell put
to Ms Flamer-Caldera an item in the Pilot Study stating that 84% of respondents
said that in the past 2 years they had never been excluded from social
gatherings on the basis of gender identity, gender expression or sexual
orientation. Ms Flamer-Caldera agreed, but stated that there were no openly
gay venues or events in Sri Lanka
. Asked about the survey’s report that 95% of
respondents had never been physically abused during the two years before the
survey was taken, Ms Flamer-Caldera acknowledged that finding. Her evidence
was that the Pilot Study was the best which could currently be achieved but she
recognised its limitations, since it was based on a very small sample, only 130
respondents. Ms Flamer-Caldera considered that many LGBTI persons who had been
harassed would not have come forward, which would have affected the outcome of
the survey.
46. Ms Flamer-Caldera’s evidence was that
it was difficult to generalise as to which groups among LGBTI were at most risk
of persecution or harm in Sri Lanka
. Some gay men were living on the margins
of society, and cruising in known areas of Colombo, which increased the risk to
them. Equal Ground had reports of the police picking up men from those areas
in order to extort large sums or to extract sexual favours. The publication Ceylon
Today in January 2012 had disclosed the known cruising spots in Colombo
and its outskirts. Lesbians were even more “invisible” than gay men. They did
not have the same freedom to leave the home and were very unlikely to make
their relationships public. Where their sexual preference was known, they were
particularly marginalised by society and in their families. There were
instances of their being forced into heterosexual marriages and physically
violated. Transgendered people were also on the margins. However, Ms
Flamer-Caldera considered that it was difficult to say that one section of the
LGBTI community was worse off than others.
47. When asked again about the circumstances of the closure of CoJ, Ms Flamer-Caldera was not sure whether it had been on sexual orientation grounds or was the result only of an enquiry into embezzlement.
48. Regarding the reference to a “gagging order” affecting Equal Ground, mentioned in her November 2013 report, Ms Flamer-Caldera explained that she did not mean an actual order against the organisation. She meant the attempt to restrict an Equal Ground workshop on HIV/AIDS which had been sanctioned by the Ministry of Health. Before it took place, a derogatory article published in a newspaper alleged that Equal Ground would try at that workshop to recruit persons, including children, to homosexuality. Ms Flamer-Caldera stated that a CID officer had visited the Equal Ground field officer running the workshop, to discuss the allegation and the proposed content of the workshop. The CID officer agreed to the Equal Ground field officer putting their discussion off to the evening, and the field officer avoided the discussion altogether by not arranging a further meeting. The Equal Ground field officer had then been able to proceed with the workshop, skirting around the parts of the proposed agenda dealing with sexuality and the law. No harm had come to him or anyone who attended.
49. Ms Flamer-Caldera was asked to explain a number of incidents mentioned in her report, and cited in identical terms in that of Mr Guruparan, based on YouTube clips. She explained that these clips were not footage of actual incidents but showed a victim, under a concealed identity, saying what had happened. The incidents mentioned in the reports were synopses of the YouTube items and were used because they came directly from victims: Equal Ground had not contacted the individuals directly. It was put to her that this contradicted her evidence about not relying on hearsay or third party information, but Ms Flamer-Caldera considered that as the YouTube clips were voiced by those affected, the Equal Ground report was not hearsay in relation to these incidents.
50. Ms Flamer-Caldera agreed that there was not much evidence in the Pilot Study or elsewhere regarding discrimination against LGBTI individuals in the provision of health care, but she said this was explained by the fact that most gays did not disclose their orientation when requesting health care. The Pilot Study did not reflect the true situation. Equal Ground dealt with reports from hundreds of people each month, which disclosed major discrimination. In one instance, a homosexual Equal Ground employee who had HIV died of a massive heart attack. An autopsy had not been carried out, as it should have been in the case of a sudden death. When his friends tried to obtain release of the body, the police referred to the deceased as a ‘faggot’. The funeral directors initially refused to take the body and it was eventually released in a sealed casket just before the burial. It had not been possible to respect the deceased’s wish to be cremated rather than buried.
51. Ms Flamer-Caldera was asked about the finding in the study that over 30% of respondents had been able to live together in a non-heterosexual relationship, many for over five years. The witness reiterated that they mostly did so as friends or room mates and their sexual orientation was not necessary known to family, friends or wider society, even when they were in long term relationships. The respondents in the survey had been able to make anonymous disclosure to Equal Ground, which was not evidence that they were otherwise open about their sexuality.
52. The problems reported to Equal Ground were mainly at the level of harassment and discrimination. There were few if any complaints of torture, but some reports of rape, including many instances of the police requesting sexual favours. It was not possible to produce figures on the scale of incidents reported to Equal Ground, due to lack of resources to compile such an analysis.
53. The panel asked Ms Flamer-Caldera to
comment on the evidence from Professor Good that the lack of privacy in Sri
Lanka
was such that same sex couples could not live together without the
nature of their relationship becoming known. Her evidence contradicted that of
Professor Good: she stated that quite a few people were able to do so, since
not everyone lived in thin-walled apartments, and many were in rented houses.
Although Sri Lankans do want to know everyone’s business, LGBTI people often
did not tell the truth to protect their position, or in other words they were
obliged to live a lie. They would describe their partner as ‘my friend’ to
deflect enquiries. Landlords would not rent to openly homosexual or lesbian
couples. It was easier for the better-off to make satisfactory living
arrangements. Most of those who lived together were economically self
sufficient, living at a distance from their parents in relatively good jobs.
Less prosperous young people tended to live with their parents until marriage.
54. Finally, Ms Flamer-Caldera told us that Equal Ground has 14 staff at its office in Colombo and 5 field officers in the districts, all full-time staff. It is funded from a variety of sources, prominent among which are the US State Department and the Finnish and Canadian governments. (The evidence also mentions help from the German, Norwegian and UK governments.)
Professor Anthony Good
55. This witness is Professor Emeritus in
Social Anthropology at the University of Edinburgh, and a recognised expert on Sri
Lanka
. He provided a report dated 8 July 2014. The background
evidence on stigmatisation of homosexuality in
Sri Lanka
is surveyed.
Professor Good considered that the continued existence of anti-sodomy laws was
indicative of prevailing social attitudes, and that the stigma against
homosexuality applied particularly to the receptive participant. On the
perception of homosexual men in society generally, Professor Good cited a
report to UNHCR by Equal Ground, a
Sri Lanka
LGBTI organisation, and some
further material. We will consider the Equal Ground report separately, since
it is the principal source underlying most of the background materials before
us, including some of those on which Professor Good has in turn relied.
Professor Good’s opinion was that while homosexual men might be able to move
about relatively freely and conceal their homosexual relationship, fear of “… being
revealed and condemned to death severely limits the ability of gay and bisexual
men to engage in a loving relationship in accordance with their sexual
orientation”. The cases are mentioned are of two homosexual couples who have
had to flee to seek asylum in the Czech Republic and in the UK.
Few details were provided.
56. One of the agreed questions for
Professor Good concerned the perception of homosexual couples living together.
He found this question hard to answer, not having knowingly encountered such a
situation. He accepted that there appeared to be evidence of a consensus among
foreign same-sex couples travelling to Sri Lanka
as tourists that no problems
were experienced unless they engaged in public displays of affection. He noted
that male friends holding hands in public was not normally construed as having
a sexual connotation, but that might well be different if it were suspected
that those concerned were gay men.
57. As to the understanding of the
principle of same sex marriage in Sri Lanka
, Professor Good cited a government
source making it clear that the Sri Lankan authorities had no intention of
legalising same sex marriage. He considered that the comments generated by
that news “indicate the wide spectrum of attitudes towards same sex marriage
among Sri Lankans”.
58. Professor Good found it unsurprising that
the appellants had sought to conceal their sexuality from their families and
from all but their closest friends in the UK, given the stigma against
homosexuality in Sri Lanka
, the centrality of marriage to all social life
there, and the expectation that all Sri Lankans will marry. It was his opinion
that it would be virtually impossible for them to keep their relationship
secret if they were to return.
Sri Lanka
is such an inquisitive society that
the fact that they were in a formal relationship, even although not officially
recognised in
Sri Lanka
, would soon become apparent to relatives and
neighbours. They could reside together, but not as a couple. They would be
expected to contribute towards the economic well being of their family.
Marriage being perceived as a universal and universally desirable state, a wish
not to marry “would be seen as highly deviant”.
59. In examination-in-chief further to his
report Professor Good explained that there was considerable confusion in the
Sri Lankan press and public mind between homosexuality and paedophilia, in
particular because of concern over growth in sex tourism, often seen as related
to sex with children. He was aware of various administrative and government
forms in Sri Lanka
requiring the declaration of marital status, and that a
local government official is responsible for enumerating households and
recording the population. Such forms generally asked for a statement of an
individual’s relationship to the head of household. However, Professor Good
was not very familiar with the forms and could not offer any conclusions
thereon.
60. In cross-examination, Professor Good
said that he had no direct experience of working with the LGBTI community in Sri
Lanka
. Although he had written many reports on the country, this was the
first in which a civil partnership was one of the features. Professor Good has
written at least one report in which homosexuality was one of the issues. In
Professor Good’s opinion, some of the Sri Lankan population would be aware of
the concept of a civil partnership. He could not speculate on the proportion.
There was an expectation in
Sri Lanka
that everyone would wish to marry, and
almost all adults did eventually marry, although again Professor Good had no
statistics to support that assertion. Public hand holding between two men was
not generally seen as sexual. Professor Good considered that a gay couple
living together in
Sri Lanka
would eventually be recognised as such, but he
could not say how quickly that would happen. There was simply much less
privacy in Sri Lankan society than in the UK, with many people living in flats
with paper thin walls, where everything would be heard. Sri Lankans were
inquisitive and people knew a great deal more about each other. The speed of
discovery of a relationship might well depend on the socio-economic status of
the partners. Professor Good was reluctant to comment on the level of risk
which might arise once a homosexual or lesbian relationship became known: he
considered that for a Sinhalese same sex couple, there would be a high degree
of stigmatisation. If there were difficulties, they would receive no
assistance from the police, rather the reverse. It was his opinion that the
risk of violence and extortion was highest for transgender individuals and
commercial sex workers.
Mr Kumaravadivel Guruparan
61. Mr Guruparan is a lecturer in law at
the University of Jaffna and a practising lawyer in Sri Lanka
, presently on study
leave at University College, London, and studying for his PhD in both
universities. He provided a report dated 12 May 2014 in which he explained
that section 365 provides both the substantive law and the punishment for
homosexual acts, and that section 365A extends the scope of the criminal law to
anyone party to commission of homosexual acts, potentially bringing persons
such as a landlord or medical service provider within the scope of the criminal
law. Although the amendment in 1995 was initially proposed with a view to
liberalising the law, the eventual outcome was to the contrary, by introducing
section 365A and by extending the provisions beyond male sexuality, so that
lesbian acts are also criminalised. Although the Constitution provides the right
to equality irrespective of sexual orientation, pre-existing law is stated not
to be a contravention of that Constitutional provision.
62. Mr Guruparan’s evidence was that while prosecutions have been rare, the law has been used “to carry out arbitrary arrests, detention and torture by the Sri Lankan police” and that it has led to “flagrant abuse” of powers of arrest and detention. Arrests lead not to charges but to “bribery, blackmail, extortion, violence or coerced sexual favours”. He gives examples which he says have been “verified by the author of this report by cross-checking with multiple sources”:
“In 2012 a lesbian was arrested and charged with vagrancy when the police found her walking back to her motor cycle on a beach near Colombo. The police commented on her masculine appearance and the fact that she was wearing pants, and she was heavily questioned for her decision to ride a motorcycle. The lesbian was detained for approximately 5 hours before the police released her.
In another case reported in 2013, a man from Kandy who travelled to Colombo to sit for an accounting exam. While staying in the area, he and a Belgian male friend shared a room just outside Colombo at a guest house known to be a place where gay men commonly stay. On evening, after the 2 men had returned from dinner, the police broke down the door of their room and arrested both men under section 365A. The police forced the Sri Lankan man’s fingers onto unused condoms and planted the condoms at the scene before taking both men to the police lock up. To obtain release from the detention, the men were forced to agree to a settlement under which the Sri Lankan man had to agree to be identified as a state witness against his friend, and the Belgian man had to pay a fine.
Another example from 2013 involves 2 gay men who are arrested by police at a public rest room in Colombo and taken to a police station. At the station, the police officers explained their reason for the arrest using derogatory terminology for gay individuals and accused the 2 men of having sex in the rest room. The police then drove the 2 men to another location, where the men were forced to pay the police a bribe to be released.”
63. The report goes on to detail the case of the former Foreign Minister Mr Samarawera, the only political figure who has been semi-open about his sexual orientation. After a burglary at his house in January 2014 the party in power twisted the case by identifying the burglar as the politician’s gay partner and threatened him with charges of homosexuality. The report quotes Mr Sumarawera’s statement to the press. It is a bitter complaint of political victimisation. It includes the comment that the politician’s private life “though private has never been a secret” and that his family and most of his parliamentary colleagues “… including my constituents … have appreciated my honesty and for never allowing my private life to get in the way of public service”. The report concludes that the appellants, if returned, faced a “substantive risk of being persecuted”.
64. In cross-examination, it was put to Mr
Guruparan that while the legal framework regulating homosexual behaviour in Sri
Lanka
might be within his area of expertise, he was not an expert regarding
risk and vulnerability. He was asked what he meant specifically when he said
in examination-in-chief that there was a risk of torture for gay men: he
relied upon the examples given above. Mr
Guruparan stated that he had cross-checked the accounts in his report
with lawyers in Colombo and in Kandy. Regarding the incident involving a Sri
Lankan and a Belgian, Mr Guruparan did not know the precise date of the offence
but his sources had confirmed that it happened in 2013.
65. Mr Whitwell put to Mr Guruparan the
text of the December 2013 Equal Ground report on human rights violations
against LGBTI individuals in Sri Lanka
, in which the same incidents were cited,
in identical, or almost identical words. The item regarding a lesbian on the
beach is repeated word for word. The item regarding a Sri Lankan and a Belgian
was also identical save for Mr Guruparan’s addition of the date of the
incident, which Equal Ground sourced to an anonymous call to the Equal Ground
hotline in 2008. The arrest of two homosexual men in a public rest room was sourced
to a YouTube clip entitled “Colombo incident in 2006”.
66. Notwithstanding the near-identity of the texts, Mr Guruparan maintained that his report was based on conversations with lawyers directly involved in the cases. He conceded after a few questions that he might have seen the Equal Ground report, but he said that he had not compiled his own report by “cutting and pasting” from it. He was unable to explain the changes of date or the near-identical text.
67. When asked about the references in his report to a risk of torture, Mr Guruparan stated that he meant psychological torture only. He had been unable to identify or verify any incident of physical torture. Mr Guruparan confirmed that no landlord or medical provider had been prosecuted, but considered nevertheless that the possibility of prosecution might operate as a deterrent. His conclusion that there was a risk of ‘persecution’ on return was not intended to be a reference to persecution as defined legally by the Refugee Convention.
Further country evidence
68. As well as the material in the bundles placed before us by both sides in advance, additional items were produced in course of the hearing.
69. A letter from the British High
Commission Colombo to the respondent dated 13 January 2014 is in reply to a
request for comment on the position of LGBT individuals in Sri
Lanka
and on the role of Equal Ground. The letter says that it is difficult
to ascertain an official government position. The President has said nothing.
It is rare for anyone else to speak openly. Calls for decriminalisation have
been rejected. Lack of prosecution demonstrates a general tolerance. The
issue is of a low priority. Opinions are much divided. Public events are
held, and Equal Ground say that you do not get much resistance to Pride, but
the reason is that the events are hosted as “private yet very public functions
that do not require prior approval so there is little opportunity for
interference”. Equal Ground is the main LGBT organisation, established for
nearly 10 years. It has had some impact but changing attitudes and society is
a long process.
70. A report from the publication Ceylon Today dated 19 November 2013 had been mentioned by Ms Flamer-Caldera. It is entitled, “Are we ready” and begins:
“Homosexuality has
always been a contentious issue in Sri Lanka
with passionate advocates of equal
rights walking hand in hand, while the most vociferous of critics of such
equality, literally shunning the very thought of people from the same gender
being intimate with each other.”
It goes on to quote the views of a cross-section of people, some hostile to equal rights for LGBTI, others sympathetic.
71. Finally, we were provided with a bundle of forms from various Sri Lankan government departments such as applications for a residence visa, citizenship, a travel document, a police clearance certificate, national identity card, and a driving licence. Some would not apply to the appellants, but others would. The forms generally ask about civil status: single, married, widowed, or divorced. They do not include an option such as “civil partner”. (The absence is unsurprising, there being no such status under Sri Lankan law.)
The individual appellants
LH’s evidence
72. LH adopted and relied upon his witness
statements of 28 June 2012 and 13 May 2014, in which he described the formation
of his relationship with IP in the UK, before which he did not know that he was
homosexual. They had got to know each other while both living in accommodation
in Watford. LH had studied hotel and tourism in Sri Lanka
and wished to
improve his English. They became attracted to each other: LH found that
emotionally distressing since previously he had thought himself to be
heterosexual. He came from a Buddhist Sinhalese family in
Sri
Lanka
and was concerned about his parents’ reaction, since he considered them
unlikely to tolerate any form of same sex relationship. Finally, they both
accepted that they belonged together, and made arrangements to register as
civil partners on 29 November 2011.
73. The couple had kept their United Kingdom civil ceremony very low key, due to what LH described as “the stigma
surrounding homosexuality among Sri Lankans”. They were very happy together:
IP had been very supportive when LH’s father died in 2012. LH noted that Sri
Lanka
is a predominantly Buddhist country where no same sex relationship is
ever condoned, and homosexuality is a criminal offence. No-one expresses such
feelings in the public domain. If they did, the public would “take the law
into their own hands and mete out the necessary punishment”. It was his
understanding that, despite rumours about certain high profile persons in
Sri
Lanka
, politician or other high profile person had ever openly voiced their
sexual orientation. “The respondent fails to appreciate that [we] are two
young men who wish to live our lives freely in an open society. By returning
to
Sri Lanka
, we would be denied this basic right”.
74. In his 2014 statement, LH noted that the parties were now living together in a property in Hampshire, where a close mutual friend had provided them with accommodation. Their close friends knew of the relationship and that they had entered into a civil partnership. He was still in contact with his family, who knew that he had an immigration appeal pending, but not the details. He had not told them of his sexuality or of the relationship with IP. He had two sisters in Negombo, one of whom was married. The other was a daughter and was currently supporting his widowed mother.
75. LP considered that if removed to Sri
Lanka
, his mother and sisters would insist that he returned to Negombo to
work and support the family, and that he enter into an arranged marriage with a
woman. They would never allow the couple to continue in an openly homosexual
relationship. The relationship would have to be carried out in secret
otherwise they would be subjected to torture and humiliation; they would not
even be able to kiss in public. He pleaded with the Tribunal to allow the
couple to continue to live in the United Kingdom.
76. After adopting his witness statements, the appellant was tendered for cross-examination. LP disclosed (with evident reluctance) that although his course ended after about one year and 2 months and he has been in the UK for 3˝ years, he has carried on receiving money from his family, at least until the last 3 months or so, on the basis that he is a student. He did not want to go on taking their money, because he did not wish to continue making misrepresentations to them. His evidence was that the couple were living discreetly in the United Kingdom and that only two or three close friends here knew of his sexual orientation. He acknowledged that to be known as homosexual would not present any problem here, even with members of the Sri Lankan community, but “… if by any chance we have to go back, this message could go to my family”. It was put to LP that his primary concern was family disapproval, and he replied, “That’s how it is – our family members would not like this”.
77. LP knew there was a law against
homosexual activity and thought that if caught he could get a 20 year prison
sentence. When pressed on what he feared from the legal system, he said “We
can’t go to the police station and make a complaint”. He had heard of a “gay
marriage” at which both parties had been arrested by the police. He did not
know what happened thereafter. When LP was asked why he and his partner could
not live together in Sri Lanka
in the same way as they do in the United Kingdom, he replied, “You can stay together, but if the family comes to know, they
will ask me to marry a woman. We won’t be able to stay together, because of
that”. It was put to him that this was an acknowledgement that he and his
partner could live together, although they would be under pressure to marry.
He said, “There is no freedom in
Sri Lanka
and we cannot go about anywhere, we
would be like prisoners”. On it being put to him again that he and his partner
could live together in Colombo or in Kandy, he replied “We cannot live like
that because I am male, at some time I will have to care for my parents, that
is the Sri Lankan culture”. Asked finally to explain his fears of return, the
appellant said, “My family won’t like it, the community won’t like it, and the
law won’t like it”.
78. In response to the panel’s questions
LH said that in the last few months his friends have helped to provide food and
that he could get money again from his family if necessary. He was asked to
explain the circumstances under which he might have to make a complaint at a
police station. He replied in terms of the community’s curiosity about two men
living together, and the need to name the head of the family when complying
with the requirement to register for elections. He had heard that there were
some gay events in Sri Lanka
.
IP’s evidence
79. IP adopted his witness statements of
26 June 2012 and 13 May 2014, and was tendered for cross-examination. His 2012
statement was along similar lines to that of LH. He had completed accountancy
studies in Sri Lanka
and come to the United Kingdom to improve his English and
enhance his career prospects in
Sri Lanka
. He already knew that he was
homosexual. The English as a Foreign Language course he was pursuing began on
4 January 2011 but he attended only until August 2011. He had met LH in their
accommodation in February 2012, the relationship developing gradually. They
were both aware that their families would be totally disappointed and would
disown them if they ever came to know about the relationship. He found LH to
be an extremely caring and loveable person: this was the first person with
whom IP had been sincerely in love.
80. His evidence was that apart from their
families disowning them, there would be general public hostility to same sex
relationships and many lived in fear, suppressing their sexuality. Although
there were rumours about certain leading politicians and artists, they had
never been publicly ‘outed’ and were the subject of ‘rumours and gossips’
rather than certainty as to their orientation. There had, to his knowledge,
been high profile attempts to change the law which had failed. The respondent
was wrong in stating that Sri Lanka
had a sizeable homosexual population, or
that homosexuals were more visible in couture, politics and local sidewalk
cafes. He and LH would not have the protection which being a high profile
person gave. They would not be able to live “a life more akin to normality” if
returned to
Sri Lanka
.
81. In his 2014 statement, IP stated that
their close friends were aware of the relationship; that he had parents, a
brother and a sister in Sri Lanka
who were aware of an immigration appeal being
pending, but not of the details; and that his family were completely unaware of
the relationship he had with LH, or of his sexuality. The family home was in
Kurunegala, a major city in central
Sri Lanka
with a population over 28,000,
mainly Sinhalese. If he were returned, his family would expect him to live
close to home in Kurunegala and to marry a woman. LH and IP would have to
continue their relationship in secret, due to the risk of ridicule, harassment,
blackmail or other persecutory treatment. Their families, friends and
neighbours would ostracise, ridicule and harm them. Normal family life for
them would be impossible in
Sri Lanka
. IP asked the Tribunal to allow the
couple to remain in the United Kingdom where they were free to continue a
normal family life together.
82. In cross-examination, IP was asked to
clarify why he could not continue living with his partner in Sri
Lanka
as he did in the United Kingdom. He said this was not possible because
“we cannot go to the police station or to the hospital together and do
anything”. Asked to clarify, he said that if they had to go to the police
station enquiries would be made as to whether they were married or not, and a
marriage such as theirs was wrong in
Sri Lanka
. It was put to IP that as he
did not tell his parents about his relationship he was hardly likely to tell
the police. IP said he was unable to tell his parents. Asked again to explain
why they would be unable to live together in
Sri Lanka
, he said, “Firstly there
would be problems with my family. Secondly, my parents expect me to take care
of them. The other problem is from the community, because it will be against
the law”.
83. IP confirmed that he was aware that there have been no prosecutions, but he asked who would be answerable if a problem did arise, and said that perhaps there had not been one in the last 64 years because no-one had previously been in a civil partnership. He was asked how it might become known that he entered into a civil partnership in another country. He replied, “By registration law, when you fill in a form you will have to say that you are married”. Various forms require disclosure of marital status, such as applications for a passport, a driving licence or a job.
84. Questioned by the panel about how
problems might arise in relation to a hospital, the appellant said that if he
and his partner went together to hospital when one fell ill, they would be
asked who is the next of kin. When she married, his sister was likely to move
out of the family house. In time, he and his brother would be expected to
arrange the care of their parents, financial and personal. He was willing to
help his parents, but not to marry a woman. As to what difference it made in
this respect whether he lived in Sri Lanka
or in the United Kingdom, and
whether or not his parents knew of his orientation, he replied, “The problem is
that I have to live with my partner. When that happens, I don’t know if that
will be a problem for my family. They won’t like it”.
Submissions for Respondent
85. For the respondent, Mr Whitwell in his
skeleton argument argued that gay men in a civil partnership in Sri
Lanka
were not a particular social group. That question was too narrow and
sterile. Notwithstanding the illegality of homosexual conduct in
Sri
Lanka
, there was general tolerance in practice. The Sri Lankan government
did not have an official position on homosexuality: decriminalisation was
spoken about in society, although opinions on the subject were much divided.
Homosexuality was more visible than ever before, including public events such
as the Pride celebrations. Sri Lankan society was predominantly Buddhist, and
Buddhism regarded homosexuality as essentially a question of private morality.
86. Mr Whitwell asked us to put little weight on the evidence of Mr Guruparan: he was a lawyer, and that was his area of expertise, not the general treatment of LGBTI individuals. The examples he cited were not reliably sourced and indeed, it was unclear whether he himself had verified them. Mr Guruparan’s report elided the distinction between discrimination and persecution and was of little assistance to the Tribunal. There was no evidence of systematic state persecution. There was opportunistic targeting, social hostility and discrimination which might in an individual case reach the threshold for Article 3, but that had to be decided on a case by case basis.
87. The respondent accepted that, as civil
partners, the appellants had family life together: however, that family life
could be continued in Sri Lanka
. The background evidence did not show
nullification or destruction of the very essence of the rights guaranteed by
Article 8 and did not come close to the threshold required. The present
appellants maintained a very low profile in terms of their sexuality in the UK.
Only a very few close friends are aware. In
Sri Lanka
they would also choose
to live discreetly because that is what they prefer and due to social pressure,
such as not wishing to distress their parents or embarrass their friends.
Social pressure of that nature does not call for Refugee Convention
protection.
88. In oral submissions, Mr Whitwell submitted that the oral evidence of the appellants indicated that their prime concern was the reaction of their families. He pointed to the difference between the evidence of Professor Good and Ms Flamer-Caldera over whether the relationship between the appellants would inevitably become known by their living together. Mr Guruparan had effectively conceded in oral evidence that he was qualified to comment only on the legal position, not on general risk on return. The examples on which he purported to do so turned out to be not based on his own enquiries but on incidents reported in 2006 and 2008 and misleadingly updated. That called into doubt the alleged validation of the information by the witness.
89. The Equal Ground Pilot Study suggested that reports of physical harassment were rare. While the issue by its nature was difficult to subject to statistical analysis, the evidence could not yield a finding that there was anything reaching the level required by the Qualification Directive or Article 3. The study found that a large proportion of respondents managed to live with their partners and did not report any denial of medical treatment or adverse response from employers.
90. The respondent relied on information in the public domain relating to foreign travellers, which although not directly relevant was indicative of the general social environment. Holidays are openly and freely marketed on a gay-friendly basis. The case fell at the second hurdle of HJ and HT. Alternatively, it should be found that the appellants would behave discreetly on return, simply as reflecting their nature, which even in the United Kingdom, where they were undoubtedly safe and were civil partners, was very discreet.
91. Mr Whitwell acknowledged that the evidence from Equal Ground should be given some weight. Although Ms Flamer-Caldera is an activist, her organisation was supported by the United Kingdom Foreign and Commonwealth Office and by the US State Department. However, the results of the Pilot Study did not sit well with Ms Flamer-Caldera’s conclusions in the report prepared for this case. The case studies produced by Equal Ground showed that although difficulties were encountered, gay couples and even lesbian couples did succeed in living together, sometimes with family knowledge of their relationship, and for extended periods. Although Professor Good said that it was extremely rare for Sri Lankans not to marry, the figures in the Pilot Study suggested well over half of respondents had elected not to marry.
92. Mr Whitwell submitted that the core of
the appellants’ reluctance to return was a preference for the quality of life
they found here as a homosexual couple, and that they had not established that
it would be unlawful either under the Refugee Convention or on humanitarian
protection or human rights grounds for them to return to Sri
Lanka
.
Submissions for Appellants
93. For the appellants, Mr Palmer’s skeleton argument argued that (i) “gay men and gay men in civil partnerships” constituted a particular social group, as established by authority, by UNHCR guidance and as found in the First-tier Tribunal; (ii) the background evidence demonstrated a real risk of a homosexual man suffering persecution, a risk enhanced in the case of homosexual men in civil partnerships; (iii) individual homosexual men and, in particular, gay men in United Kingdom civil partnerships, enjoyed private and family life under Article 8; and that (iv) “whereas current human rights jurisprudence does not give a right to marry to same sex couples, the effect of removal … would entail a flagrant denial of the right to family life … as a gay couple but also as individual gay men”, reaching the high threshold set by EM (Lebanon).
94. Mr Palmer maintained that the background evidence established a real risk of intimidation, harassment, discrimination, arrests and violence on a scale and of a frequency such as to reach the persecution threshold. There was a sustained and systemic failure of state protection, there being no evidence to support any contention that the Sri Lankan authorities offer protection. Rather, the state was complicit. There is no LGBTI support network in existence: rather, LGBTI groups had been and continued to be subject to harassment, raids and surveillance by the authorities. The Equal Ground Pilot Study had been drawn upon in the Secretary of State’s own Operational Guidance Note and Country of Origin Information Report, and the organisation was presented with a cheque by the British High Commission in Colombo marking International Day Against Homophobia. The Upper Tribunal should give significant weight to that study, and to the other Equal Ground evidence. The appellants invited the Tribunal to find that Mr Guruparan was qualified to comment on the issues, noting that Professor Good, an expert whose status could not reasonably be doubted, had deferred to him on matters of law in his oral evidence. The first, second and third questions in HJ and HT should be answered in favour of the appellants.
95. The appellants’ evidence in their
witness statements was conclusive of the fact that they would not live openly
as homosexual men or as a homosexual couple in Sri Lanka
. Their credibility
had not been doubted in the First-tier Tribunal and their evidence had not
changed. As to the fourth question, their evidence was that they would live
discreetly both for cultural and social reasons and for fear of persecution.
The appellants enjoyed both private and family life together. They had a right
to remain together as a couple “without enforced self repression of their civil
partnership and their sexual identity, without fear of serious harm and
discrimination and without the psychological stress and suffering that would
undoubtedly flow from being unable to remain as a couple and/or to freely
express their sexuality”. If returned, they would be forced to act discreetly
to avoid “state and non state persecution, extreme societal and cultural
discrimination and stigma”. They credibly asserted that there was no
possibility of being able to remain as a couple but they would be “forced to
live separately and to agree to their families’ demands and to enter into
arranged marriages with women”. The appellants submitted that to be forced by
their families and society into marriage with women, or into keeping their
relationship and sexual orientation secret would be a flagrant violation of
their right to respect for private and family life.
96. In his oral submissions Mr Palmer
contended that the evidence was sufficient to establish a risk of persecution
if the appellants were to be returned to Sri Lanka
. In HJ and HT, the
appellant HJ, from Iran, had faced gross and manifest persecution. Cameroon
was a country where prosecutions were rare and the circumstances (apart from
the existence of any level of prosecution) were similar to those in
Sri
Lanka
. HT’s case had also succeeded. The Sri Lankan Government position was
not unclear. The former President has made extreme remarks against lesbians in
particular, occasioned by the Norwegian Ambassador having a same-sex partner.
There had been other vicious anti-gay remarks by members of the government.
Contrary to the submission that the state engaged in benign collaboration with
Equal Ground, the evidence from Ms Flamer-Caldera was that the dissemination of
information was controlled and that effectively the organisation had been
subject to a gagging order.
97. Although the Secretary of State made much of the existence of Pride events, these could be held only because a safe, secure venue had been found. Equal Ground was not a highly visible group in Sri Lankan society. Ms Flamer-Caldera significantly pointed out that with greater visibility there came greater intimidation and violence.
98. Although the Penal Code was not used to prosecute gay men, their landlords or medical providers, and was not a direct means of persecution, it was the tool by which openly homosexual men could readily be targeted, as Equal Ground demonstrated in its reports. The Tribunal should find that there was plainly significant under-reporting of such incidents. The written reports by Equal Ground cited only specific and verified cases, but it was significant that Ms Flamer-Caldera in oral evidence explained that many further instances went unrecorded. Her evidence should be given significant weight in establishing general risk. The lack of more detailed and specific evidence was due to the fear which existed throughout the community, which arose from the existence of the legislation. Not only the state, through legislation, but society in general took an adverse view of the LGBTI community. There were numerous examples of homophobic publications. Equal Ground’s evidence in its Pilot Study was carefully qualified. Although some same sex couples live together, Ms Flamer-Caldera made it clear that most do not, and that even those are living together do not disclose their orientation publicly, due to fear.
99. Mr Palmer accepted that there was a
significant difference between the evidence from Professor Good and from Ms
Flamer-Caldera about the practicality of living together. He submitted that
the description given by either expert amounted to persecution, although in
somewhat different forms. The evidence was overwhelming that homosexual men
living openly together would be at risk of persecution. To live as civil
partners would enhance that risk, because it was less easy to hide sexuality.
It was accepted that these appellants would not engage in highly risky
behaviours such as visiting cruising areas. They would have to live in
absolute secrecy due to the family reaction and the treatment they might
encounter from both state and non state agents in a deeply homophobic society.
Mr Palmer said that a finding that homosexual men in a civil partnership
constituted a particular social group in Sri Lanka
would be justified. There
could be little doubt that members of that particular sub-group would be at
enhanced risk.
100.
Turning to Article
8, Mr Palmer accepted that family life between the appellants would continue in
Sri Lanka
, notwithstanding non-recognition of their civil partnership. The
determining question was not whether any interference would go to family life
or to private life, but the level at which it would occur. For the appellants
to be required to deny their formal relationship amounted to a denial of their
right to be together. He asked that the appellants would not in fact be able
to live with each other in
Sri Lanka
but would be forced to separate and, at
the insistence of their family, required to enter into heterosexual
relationships. That would amount to a complete nullification of their existing
family life.
Discussion
101. We began by considering what weight we could place on the evidence of the country experts. Ms Flamer-Caldera is an internationally acknowledged expert on the circumstances of LGBT persons (and indeed LGBTIQ, although that is not relevant on the facts of this appeal). We were glad to have her assistance in these appeals and we have had careful regard to her evidence, which in general we found very helpful. Mr Whitwell was right to point out that Ms Flamer-Caldera is committed to a cause, but he did not ask us to disregard her evidence. She did not seek to disguise her campaigning agenda, but it is difficult to imagine that there could have been a better informed witness on the subject. We found her to be fair and careful in her oral evidence, speaking to what is very much her area of special knowledge, and willing to qualify her conclusions where appropriate.
102. The case examples cited by Equal Ground include several gay and lesbian couples living together whose families know about their relationship. It is not surprising that known instances are few, given prevailing general social reticence, but the evidence is that some gay and lesbian couples are able to live together at least semi-openly. The statistics and the very useful tables provided in the Pilot Study indicated that a significant number of the respondents were in long-term relationships, 31% of which had lasted for more than four years. 71% had never been excluded from a social gathering or activity on the basis of their gender identity or sexual orientation; 87% had never been excluded from religious places or activities in the preceding two years and 78% had never faced exclusion from family activities in that period. 80% had experienced no physical abuse or serious harassment in the preceding two years, though 62% had experienced verbal abuse on at least one occasion and most people felt gossiped about. The overwhelming majority of those who did experience discrimination suffered it from families and friends, although sometimes also from neighbours. 76% had not experienced any problems with housing or inability to rent accommodation, and 75% had not lost their jobs in the previous two years, with 88% reporting that they had not been refused promotion nor had their jobs altered for that reason.
103. Of the smaller group who had experienced difficulties, in almost all of the statistical analyses most of those who had difficulty did so at least partly on the basis of their gender identity. Only very small numbers were affected on the basis of sexual orientation alone. Ms Flamer-Caldera’s executive summary of the Pilot Study evidence indicated that there were high levels of abuse and harm, without differentiating between gender identity and sexual orientation. In oral evidence she acknowledged significant difficulties in the statistical significance and data analysis in all three of the background reports produced. Her statements in the summary of the Pilot Study, in particular, are reflected in the international materials as indicating high levels of difficulty, whereas the statistics will not bear that interpretation. That has tended to distort not just the Equal Ground reports but also some of the international reports.
104.
Professor Good is
not and did not purport to be a specialist about LGBTI in Sri
Lanka
: this was his first expert report on the topic for the Upper
Tribunal. We noted also that Professor Good has not lived in
Sri
Lanka
for some considerable time. Both Professor Good and Ms Flamer-Caldera
said that most landlords preferred to avoid gay tenants, but there was no
evidence of this going to the length of active enquiries by landlords as to
their tenants’ sexuality. In relation to the conflict between Professor Good’s
evidence and that of Ms Flamer-Caldera as to the living conditions and the
possibility of living privately in Sri Lankan cities, we have preferred the
evidence of Ms Flamer-Caldera that it is indeed possible to do so and that
discovery of a relationship between two persons of the same sex would not
necessary occur just because the walls were too thin or the properties too
closely serried for private activity to be unheard and unobserved. We note that
both witnesses agreed that such a relationship would be likely to be passed off
as two friends sharing accommodation. Based on Ms Flamer-Caldera’s oral
evidence and on the statistics in the Equal Ground Pilot Study (and accepting
that depended on a small and not wholly representative sample) we are unpersuaded
that remaining unmarried in cities such as Colombo is as rare, or perceived to
be as socially deviant, as Professor Good thought.
105. We have considered what weight we can give to the evidence of Mr Guruparan. We have concluded that his evidence did not add anything useful. The examples he gave came from other sources and we consider it more likely than not that the examples he gave were simply lifted verbatim from the Equal Ground Pilot Study examples. He was unable to explain satisfactorily how he had verified the information so as to give it any greater force.
106. We remind ourselves, applying the decision of the Court of Justice of the European Union in X, Y and Z that while the existence of laws criminalising homosexual activity supports a finding that homosexuals form a particular social group, such laws do not by themselves constitute persecution, unless the criminal sanctions are actually applied. The CJEU held that when assessing an application for refugee status the competent authorities cannot reasonably expect an asylum applicant to conceal his homosexuality, nor to exercise reserve in the expression of his sexual orientation, in order to avoid the risk of persecution if one exists. The X, Y and Z judgment is in line with the decision of the United Kingdom Supreme Court in HJ and HT in the latter respect and puts the question of the existence of a particular social group beyond challenge in countries where homosexuality remains a criminal offence.
107.
Sections 365 and
365A of the Sri Lankan Penal Code therefore create a particular social group of
homosexuals, lesbians, and others who have a same-sex sexual identity. There
have been few if any prosecutions and no convictions, so there is no
presumption of persecution. The question whether there is a risk of
persecution in the HJ and HT sense is one of fact, having regard to the
evidence of what actually happens in Sri Lanka
. We have not found it necessary
to further refine the particular social group to introduce a sub-group of those
who have entered into civil partnerships or have acquired a same-sex marital or
quasi-marital status in another country.
108. It seems tolerably clear from the evidence before us that for male sex workers and transgender individuals there is a risk of harassment, blackmail, and, on occasion, serious harm capable of amounting to persecution, by reason of the public nature of their sexuality. Also, given the cultural constraints on the position of women in rural areas, lesbian and bisexual women may be at risk of persecution or serious harm there. It is unclear whether that risk continues for those who live away from their families in larger cities, and specifically in Colombo.
109.
The population of Sri
Lanka
is about 20 million people, of whom nearly 5 million live in the Colombo area. The evidence before us indicates that there are large numbers of homosexuals
in
Sri Lanka
, in particular in Colombo. In
2010, the Collective for Economic, Social and Cultural Rights estimated that
there were 24,000 –
37,000 men who have sex with men (MSMs) in
Sri Lanka
. In 2011, the Sri Lankan
health authorities estimated that there were 30,000 homosexuals in
Sri
Lanka
. Unpublished data referred to by Ceylon Today in 2014 was unable to
reconcile estimates of 8,000-35,000 for the number of MSMs in
Sri
Lanka
. We suspect, under the country circumstances we have described, that
even the higher of these figures may be underestimated.
110.
The risk for gay
men is not, we consider, at the level of persecution or serious harm in Sri
Lanka
as a whole. The legal potential of sanctions underlies the instances
of the police arresting homosexual men and subjecting them to abuse, sometimes
violent, and to extortion. Although the examples to which we have been
referred appear to us to be generally credible, they are few, they date back
over a period of up to 8 years, and the same ones are cited repeatedly in the
various reports. The level of abuse in the reports generally falls short of the
level of persecution. The main exception is the allegation that the police
sometimes rape gay men in custody. That allegation was not established by
specific instances, save for the transgender individual in the student research
example, which tends to support the drawing of a distinction between the
treatment of transgender individuals and that of gay men in general. The
evidence suggests that such risks as there are apply more to some homosexual
men than for others. The examples cited and the general opinion of the experts
centre on transgender persons, commercial sex workers, and visitors to cruising
areas or other homosexual pick up venues.
111. The state has little or no interest in recording such matters. There are no official statistics. Numerous members of the LGBTI community confide in Equal Ground, but it is a relatively small organisation in a country with a large population. We conclude that instances of abuse of members of the LGBTI community are underreported. Taking that into account, and accepting that there are some incidents at the serious end of the scale, including rape, the appellants have not been able to point to more than a few specific instances at or near the level of persecution. These appear to arise from opportunism and exploitation, not from systematic hostility.
112. We find force in the argument that in such cases as are recorded there is a failure of state protection. The perpetrators named in most if not all of the instances cited to us are police officers. There is no evidence that such abuse is ordered from a high level, but nor is there any evidence that the state does anything to stop it. On the contrary, the perpetrators, as far as we can see, enjoy complete immunity.
113.
As to the climate
of public opinion, politicians, including the former President, make homophobic
statements. Mr Palmer drew our attention to reports that in June 2013
President Rajapaksa said he would refuse entry to Sri Lanka
of the same-sex
partner of the Norwegian ambassador. The outcome, if the matter came to
anything, was not followed up in evidence. There are homophobic publications,
but there is also evidence of a public debate about gay rights in which both
sides are heard, and of known homosexual persons being able to get on with
their lives without major difficulty. It is right that the homophobic side of
the debate is vigorously expressed and that, at least in some of the blog posts
we have seen, it approaches the level of hate speech and often conflates
homosexuality and paedophilia. Same-sex orientation is seen by many people,
including some politicians, as unacceptable; but while there are expressions of
homophobia in the media there is also open debate in which tolerant voices are
heard.
114. The former Foreign Minister who declared his sexual orientation was out of government when we heard these appeals. He spoke about the issue in public only because he had to, but we thought it a significant detail that he has been at least semi-open about his orientation and that his family, most of his parliamentary colleagues, and his constituents (i.e., the wider public) had not previously given him any difficulty.
115. We do not accept the submission for the appellants that LGBTI groups, due to their nature, are from time to time the subject of harassment or raids by the Sri Lankan authorities. As the circumstances of the closure of CoJ (“Companions on a Journey”) emerged in evidence, this attracted homophobic publicity, but we find from Ms Flamer-Caldera’s evidence that the closure was more closely related to an inquiry into allegations of embezzlement, rather than being a homophobic crackdown by the authorities. Pride events are arranged and staged with great care, but they happen regularly, under secure conditions but not in secret.
116. The only significant ongoing LGBTI support organisation, Equal Ground, is able to carry on its activities without major problems from the authorities. There may be an element of surveillance, but again as the circumstances of the “gagging order” developed in evidence a different picture emerged, indicating some exaggeration: there was in fact no gagging order but a degree of negotiation after a visit by the authorities, and Equal Ground was able to avoid that problem relatively easily, without any further repercussions.
117.
The appellants in
their statements said that Buddhism, the main religion in Sri
Lanka
, is one of the sources of hostility to same-sex sexual activity. This
proposition was not given any real significance in submissions and we were not
referred to anything specific in the background evidence, so we limit ourselves
to observing that the tenor of such evidence as was before us is that while
open to various interpretations on the subject, Buddhism is not generally
considered to foster hostility to same-sex sexual activity. We note, in
particular, that the child in the ‘gay marriage’ case went to a Buddhist
monastery and became a novice monk.
118. The evidence of general persecution of gay men thus amounted to a low number of serious incidents. Equal Ground is the immediate or underlying source for almost all of that information. While we have accepted that there is under-reporting, we are unable to agree that the incidents involving gay men are of a scale, frequency or pattern to constitute a general risk of persecution. Although there is a lack of state protection, there is no evidence of serious harm except in those isolated instances. There may be a few members of the wider LGBTI community who suffer difficulties at the level of persecution, but the evidence is not there to indicate that it is only because they are gay men.
119. The appellants alleged that they might be forced contrary to their orientation into a heterosexual marriage. If that were the case, it would certainly be capable of amounting to persecution, but the evidence before us did not support their statements. There was some evidence of rural lesbians and bisexual women being forced into same-sex marriage, but little or no evidence to support such a risk for gay men, particularly if they chose to exercise an internal relocation option to the more gay-friendly cities such as Colombo. It was not suggested in submissions for the appellants that they came from powerful families whose reach might be nationwide. If a risk exists, we find that internal relocation would normally be sufficient to enable an individual to avoid the risk, since risks are usually from family, friends or neighbours. Colombo would perhaps be the obvious choice for internal relocation, and was mentioned in a number of the press reports as having many LGBT individuals living there, but the principal distinction made in the country materials is between rural and city environments, suggesting that internal relocation options may exist to other Sri Lankan cities also.
120.
We do not consider
that the Sri Lankan state’s failure to recognise the status of civil partnership
is sufficient on its own to engage Article 8 ECHR. We accept that ordinary
life in Sri Lanka
involves completing government forms, forms for potential or
actual employers, and so on, many of which in the ordinary way ask for a
person’s marital status. The civil partnership between the appellants carries
no recognition in
Sri Lanka
, so the correct answer as a matter of law on such
forms will be “single”.
121.
There is a wide
international variation in marital or quasi-marital status available to same-sex
partners, and in recognition of those statuses. Neither the United
Kingdom’s civil partnership contracts, nor the gay marriage status now
available both in the United Kingdom and in most parts of the United
States, are recognised in Sri Lanka
. The same is true of the French PACS
status, which is a contractual arrangement short of marriage available to
same-sex and opposite sex partners, but which is not recognised outside France.
122. In the debate over the successive introduction of heterosexual civil partnership, same-sex civil partnership and same-sex marriage in the UK, the complaint was commonly heard of inability to have an official expression of a deeply felt relationship. No doubt that was and is a genuine grievance. However, we think it would go too far to hold that non-recognition elsewhere of such unions confers entitlement to international protection. It is a grievance well short of the standard explained in cases such as EM (Lebanon) and SS (Malaysia), that of a flagrant breach of a core human right.
Country guidance
123. We have considered the questions identified by the parties in these appeals, although not all of those are relevant for the purposes of country guidance. The following guidance is given:
(1)
Having
regard to the provisions of articles 365 and 365A of the Sri Lankan Penal Code,
gay men in Sri Lanka
are a particular social group.
(2)
‘Gay men in
civil partnerships’ in Sri Lanka
do not constitute a particular social group for
the purposes of the Refugee Convention. The Sri Lankan authorities’ failure to recognise
alternative marital and quasi-marital statuses such as civil partnership or
homosexual marriage which are available in other countries of the world does
not, without more, amount to a flagrant breach of core human rights.
(3)
Applying
the test set out by Lord Rodger in the Supreme Court judgment in HJ and HT, in
general the treatment of gay men in Sri Lanka
does not reach the standard of
persecution or serious harm.
(4)
There is a
significant population of homosexuals and other LGBT individuals in Sri
Lanka
, in particular in Colombo. While there is more risk for lesbian and
bisexual women in rural areas, because of the control exercised by families on
unmarried women, and for transgender individuals and sex workers in the
cities, it will be a question of fact whether for a particular individual the
risk reaches the international protection standard, and in particular, whether
it extends beyond their home area.
(5) Where a risk of persecution or serious harm exists in an appellant’s home area, there may be an internal relocation option, particularly for individuals returning via Colombo from the United Kingdom.
(6)
The lack of
recognition of alternative marital and quasi-marital statuses such as civil
partnership or homosexual marriage which are available in other countries of
the world is not of itself capable of amounting to a flagrant breach of the
appellants’ right to respect for family life on return to Sri Lanka
.
The individual appellants
124.
These appellants
are gay. They are in a civil partnership. One of them did not know he was gay
before leaving Sri Lanka
; the other has not given evidence of any serious
difficulties experienced while living there. In the United Kingdom, where they
are not at risk, their lifestyle is particularly discreet: very few people know
of their sexual orientation and they do not make use of the freedom to go out
and express their sexual orientation in public.
125.
HJ and HT established that there was no test of
reasonable tolerability, but nor is there a clear dividing line between those
who would prefer to live openly and those who would prefer to live discreetly,
because everyone’s circumstances are different. We have considered the facts
in HJ and HT, as Mr Palmer invited us to do but we do not consider them
to be on all fours with the situation in Sri Lanka
.
126.
The present case
is essentially an individual and fact-specific inquiry, not involving a
guarantee of the human rights standards that are applied by the receiving
country within its own territory and concentrating on what is actually likely
to happen in the receiving country, “often ... a difficult task since much of
the relevant evidence will come from the claimant, who has a strong personal
interest in its outcome”. The reasons for the choice of discretion are at the
heart of the issue. The appellants of course would prefer their status to be
regarded as it is in the UK, but that is not the law in Sri
Lanka
.
127.
To forecast future
behaviour is difficult, even for the persons concerned, under circumstances
which they do not wish to contemplate. These appellants are a particularly
discreet couple, even in the United Kingdom, where there is no need for
discretion. They mostly stay at home and just enjoy each other’s company. If
the appellants are removed together, they continue as a matter of United
Kingdom law to be each others’ civil partners, and the evidence suggests that
they will be able to live together in a city in Sri Lanka
, probably Colombo. The private way in which they live in the United Kingdom could be replicated
there.
128. We do not think the appellants were dishonest witnesses, but we did find them unwilling to face up realistically to their future, wherever they are to spend it. Their answers to questions about their possible return were defensive, unforthcoming and rehearsed. They were quick to say that they would have problems with the police, with health services, and with official forms; but when asked to explain what the problems might be, they could envisage no clear scenario of difficulties with police officers, medical providers, or officialdom.
129.
The reality of the
appellants’ concerns was vividly apparent while each of them gave evidence. The
appellants dropped out of their English studies when they met, but have
continued to receive money from family members in Sri Lanka
, without explaining
their present circumstances. They have not told their parents that they are
gay, or that they live together, or that they have stopped studying. They do
not wish to contemplate their families becoming aware of their orientation and
relationship. They both maintain relations with their families and we think
they both intend to continue to do so, wherever they live. Those issues will
have to be dealt with on return and are likely to cause difficulty in their
families for a time.
130. The appellants are likely to be expected to help to care for their parents when they are older and both indicated that in principle they would not object to doing so, subject to their families respecting their sexual orientation and their partnership. More likely than not, their families will be told or will recognise the reality that they are gay at some point in the medium to long-term future. That can be a difficult stage of life in countries with no legal barriers to same-sex relationships. International protection is neither a legal entitlement nor a practical means of avoiding it.
131.
We were invited to
find that on return the appellants could not continue with their relationship
but would be coerced into heterosexual marriages. The evidence of families
forcing gay men (as opposed to lesbians and bisexual women) to marry against
their wishes was sparse in the materials before us, nor have we seen any
evidence that these particular families are likely to apply pressure so intense
as to force these appellants into doing so. The appellants appeared to us to
be at least normally resilient young men who have lived abroad and looked after
each other for a period of some years. We find it much more likely than not
that in Sri Lanka
the appellants would elect to continue their life together
rather than returning to live with their families of origin. We also find
that they would both be willing to help those families if and when the need
arises. Neither of them will be providing a daughter-in-law to assist, but
that is another reality to be faced up to sooner or later, wherever the
appellants live.
132.
The appellants may
not come from the richest backgrounds in Sri Lanka
but both wider families are
of reasonably substantial means, able to provide for the appellants in the United Kingdom, where living costs are much higher, over a period of three and a half
years. The appellants are quite well-educated and used to living away from
their families. We see no reason why they would not fall into the category
described by Ms Flamer-Caldera of a same-sex couple in a long-term relationship
who could set up and maintain a household together. We recognise her caveat
about the use of discretion, but that is the appellants’ preference even in the
United Kingdom, where they are not at risk and have a wide range of choices.
133.
The appellants
have stated concerns about the state, the police, other government officials,
medical professionals, landlords and the general public, but we do not think
any of those are of real substance either in their own minds or in the
environment in which they would have to live. By far their greatest concern is
“coming out” to their families. They would be able to live together in Sri
Lanka
according to their personal inclinations in much the same way as they do
in the UK. There would be some disadvantages in their living circumstances,
including absence of legal recognition of their relationship, but none of the
realistically likely consequences of their return approaches the level of a
risk of persecution, and there would be no disproportionate interference with
their rights to private and family life.
134.
We have tried to
proceed from the general to the particular and in so doing have necessarily departed
from the format of the issues agreed by the parties, which run those aspects
together, and some of which do not accommodate a “yes or no” answer. We
summarise our principal findings as follows. We accept that gay men in Sri
Lanka
constitute a particular social group for Refugee Convention purposes.
Their status as civil partners does not bring them within a narrower particular
social group, because the status has not been shown to enhance risk. Only the
wider definition is justified. We find that these appellants would live
discreetly in
Sri Lanka
in the same way as they do in the UK
in accordance with their preferences, not in order to avoid persecution. The
alternative of humanitarian protection does not arise: these appeals stand or
fall on the Refugee Convention issue since there is no differential fact set
engaging only humanitarian protection.
135.
Article 8 ECHR is
engaged because the appellants enjoy family and private life together. However,
any difficulties they would encounter in Sri Lanka
including social, cultural
and legal discrimination are not, on these facts, at a level which could or
would amount to a flagrant breach of their core human rights so as to render
their removal disproportionate, if removal directions were set again.
Disposal
136. On 12 April 2012 the appellants were served with decisions to vary leave to remain and with decisions to remove. In light of Adamally & Jaferi [2012] UKUT 00414, such decisions could not properly be made at the same time. (The position has since changed, by amendment of s.47 of the 2006 Act on 8 May 2013.) In these proceedings, the removal decisions were withdrawn by the respondent. The matter makes no difference to the substance of our decision.
137. The decision of the First-tier Tribunal has been set aside. We remake the decision as follows: the appeals, as originally brought to the First-tier Tribunal, are dismissed on all grounds.
JUDGE MACLEMAN
28 January 2015
Judge of the Upper Tribunal
APPENDIX A
Documents before the Upper Tribunal
Date |
Author |
Title |
2002 |
|
|
Undated |
Victor C de Munck Ph.D, Robert T Francoeur, with comments by Patricia Weerakoon Ph.D |
|
2005 |
|
|
17 February |
Sydney Star Observer, Australia |
Gay rights are human rights |
2008 |
|
|
17 January |
Canadian Immigration and Refugee Board |
|
2009 |
|
|
July 27 |
Interpress Service News Agency |
Rights, |
2010 |
|
|
Undated |
Andrea Nichols, University of Missouri-St Louis, St Louis County |
Dance Ponnaya, Dance! Police abuses against
transgender sex workers in |
27 April |
UNHCR Human Rights Council |
Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover (late submission) |
5 July |
Lakbima News |
“We are all human” says gay rights activist |
10 September |
Collective for Economic, Social and
Cultural Rights in |
Implementation of the International Covenant on Economic, Social and Cultural Rights: Civil Society Report |
2011 |
|
|
January |
Women’s Support Group |
The status of lesbians, bisexual women and
transgendered persons in |
1 March |
International Lesbian, Gay, Bisexual, Trans and Intersex Association |
Erasure of the gays in |
April-June |
Equal Ground |
Struggling against homophobic violence and hate crimes |
21 September |
|
|
2012 |
|
|
13 January |
Canadian Immigration and Refugee Board |
|
7 March |
Home Office UKBA |
|
26 June |
Appellant IP |
Witness statement |
28 June |
Appellant LH |
Witness statement |
23 October |
UNHCR |
Guidelines on international protection no 9: claims to refugee status based on sexual orientation and/or gender identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the status of refugees |
November |
Coalition for sexual rights |
Joint stakeholder submission to the Universal Periodic Review: CREA, Equal Ground, The Sexual Rights Initiative and the Women’s Support Group |
9 December |
Equal Ground |
Towards a lesbians, gays, bisexuals,
transsexuals and transgendered (LGBT) stigma and discrimination index for |
21 December |
UNHCR |
UNHCR eligibility guidelines for assessing
the internal protection needs of asylum seekers from |
2013 |
|
|
Undated |
Freedom House |
Freedom in the World 2013 |
January |
Equal Ground |
Strengthening of legal protection for LGBT
in |
10 February |
Ceylon Today: Anukshi Jayasinha |
When words do more than hurt |
July |
United Kingdom Home Office |
|
1 July |
Prathiwadhiya Blogspot.com |
Should the Norway ambassador’s homosexual mania be allowed in our country? |
14 July |
|
Grama Niladhari: Grassroots go-between between State and common man |
19 August |
Prathiwadhiya Blogspot.com |
Here are the real false devotees |
23 August |
Gay Star News |
|
24 August |
Prathiwadhiya Blogspot.com |
Is this |
30 August |
Prathiwadhiya Blogspot.com |
What could have been broken off by a tip of a fingernail needs the use of an axe |
1 September |
The Nation |
A society’s struggle against abandoning homosexuality |
6 September |
Prathiwadhiya Blogspot.com |
Daily Mirror media reports support homosexuality |
23 September |
Pink News |
Former Commonwealth Head of Human rights condemns
|
28 September |
Prathiwadhiya Blogspot.com |
Residents’ of Annuradhapura district, are you aware of this? |
November |
Equal Ground |
Report on the situation of LGBT persons in |
14 November |
Gay Star News |
|
14 November |
Gay Star News |
|
December |
Equal Ground |
Human rights violations against lesbian,
gay, bisexual and transgender (LGBT) people in Submitted for consideration at the 110th session of the UNHCR human rights committee, March 2014, Geneva |
2014 |
|
|
Undated |
Freedom House |
Freedom in the World 2014 |
12 January |
Ceylon Today |
Colombo a hive of ‘gay’ activity |
27 February |
US State Department |
Country report on human rights practices
2013 – |
10 April |
Foreign and Commonwealth Office |
Human rights and democracy report 2013 -
Section XI: Human rights in countries of concern – |
12 May |
Mr Kumaravadivel Guruparan, University of Jaffna, |
Country expert report |
13 May |
Appellant IP |
Further witness statement |
13 May |
Appellant LH |
Further witness statement |
29 May |
La Trobe University, Australia |
Homophobia and the legality of gay sex in the Commonwealth |
8 July |
Professor Anthony Good |
Report on Mr LH and Mr IP |
7 August |
Professor Anthony Good |
Email attaching information on duties of Grama Sevaka/Grama Niladhari, character certificate, passport applications, and police clearance certificate, with copy forms attached. |
Appendix B
Summary of country background evidence
A. Equal Ground
B. Collective for
Economic, Social, and Cultural Rights in Sri Lanka
“125. Sri
Lanka
is one of the few countries in the Asia and Pacific region with a low
level of HIV prevalence. Recent figures reveal that transmission through
homosexual and bisexual acts amount to 11%, and it is estimated that the
country has a population of 24,000 – 37,000 men who have sex with men,
considered to be at greatest risk.
126. Much needs to be done to address the absence of policies which reflect the needs of persons of different gender identities and the criminalisation of same sex orientations render it difficult for people from these communities to access public health services in a manner that is open and informative about their medical and personal histories. Thus, services which are available to people living with HIV/ AIDS are accessed by those who are willing to face stigmatisation or have to hide their sexual orientation. …
158. It is appropriate to mention here that significant issues such as reproductive health and rights, sexual rights as well as gender and related topics are inadequately represented in the curricula of the Sri Lankan education system including higher education which has resulted in poor awareness and even poorer understanding of most of these issues.
159. The rigid religious interpretations and traditional social perspectives have been thrusting patriarchal and heteronormative values on children preventing them from discussing these ‘social taboos’ openly for a greater tolerance and understanding. Consequently, the harsh attitude extending to phobia towards different sexual orientations has led to physical and mental harassment and discrimination, resulting in dropping out from school, and even leading to suicide.”
C. Women’s Support Group Sri Lanka
(WSG)
“This
criminalization paves the way for police and anti-gay groups to brand all
lesbian, bisexual, transgendered persons as ‘perverts’ and criminals. The fear
of being apprehended and identified as a person of non-normative sexual
behavior or practice leads to a cycle of silence by members of the LBT
community, by their families and friends and by the society as a whole and
makes them vulnerable to a range of abuses including extortion, intimidation,
unlawful arrest and detention, harassment and torture. Homophobic and
transphobic articles repeatedly appear in the media, especially the print
media, including in some State owned newspapers and in newspapers that follow
State policy. These articles constitute a means by which society strengthens
its resistance to recognition of LBT communities and continues to isolate,
ridicule and justify acts of violence on members of the LBT communities. With
regard to women’s sports teams, there have been unofficial reports where women
who are key players in the National team have lost their positions once it has
been speculated that they are lesbians. In this sense, there is direct
discrimination which impedes the full enjoyment of the right to equality by
specific categories of women in Sri Lanka
who face discrimination due to their
sexual orientation and gender identity/expression.”
The abbreviation ‘LBT’ (lesbian, bisexual and transgender) excludes consideration of the position of gay men.
D. International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA)
“Homosexuality is
often sidelined by the mainstream social discourse in Sri
Lanka
. This does not suggest that our society does not tolerate homosexuality;
rather it seems resolved to overlook it by rejecting it completely from the
popular consciousness. This defensive approach to homosexuality signifies a
need to conserve the sexually homogenous character superimposed on our society.
Thus homosexuality is not an “issue.” However this does not mean that the Sri
Lankan LGBT community does not have issues. These issues could only be
addressed through foregrounding homosexuality per se. In as far as our society
does not acknowledge the LGBT community as a part of its fabric, their
grievances will remain unrecognized. …Homosexuality, at least on paper, remains
a crime in
Sri Lanka
.
“… Nishada tells me that gays are hardly ever harassed physically, although he claims that the Nacchi community, or men who think of themselves as women, are often subjected to harassment. Nacchi people he says is the “face” of Sri Lankan LGBT community. “They are great dancers; they get paid for dancing at weddings. Sometimes when they return from wedding ceremonies, the police would stop them and take their money,” Nishada says. The dress and behaviour of the Nacchi people, or the “queens,” make them easily recognizable targets. As a socially marginalized group they are vulnerable and often sexually exploited, I gathered from Nishada. …
He says that many gay men and women are stuck within their unhappy marriages (obviously making their spouses equally unhappy) because they are compelled to remain closeted owing to the stigma attached to homosexuality. It seems to me that homophobia in our society works at an insidious level; it does not openly manifest itself as it is jettisoned from the collective consciousness of the masses. It is at micro-level that the homosexuals are discriminated and condemned, often by the immediate family members. This makes it difficult for homosexuals to openly acknowledge themselves and embrace their identity. …
Nishada says that HIV positive homosexuals are often discouraged from seeking medical attention as homosexuality is a crime in our country. He also adds that on the grounds of sexual orientation, they are often discriminated at health clinics. This connectivity compels homosexuals to remain without proper medical attention, which is hazardous to their health and that of the entire body-politic. … He stresses that decriminalizing homosexuality can substantially lessen the stigma attached to this orientation, and this in turn would encourage homosexuals to seek medical attention.
I was once told by an elderly, university educated woman whose son is a homosexual that, homosexuality is a myth prevalent among the “English speaking people in Colombo.” It is certainly a myth prevalent among most of the straight members of our society that homosexuality is a “disease” that can be cured, especially by counselling. It is this kind of mythology that gay activism should seek to counter.
Nishada says that there are four gay rights organizations which are actively engaged in promoting the rights of the Sri Lankan LGBT community. …However, he admits that these organizations are elitist in character and the administrative positions in the organizations are reserved for an elite coterie. Nishada tries to rationalize this state of affairs by saying that given the nature of the issue, only those who are economically and socially empowered can be openly gay. However it seems to me that this marginalization of the non-English speaking, subaltern homosexual has paved the way for the collective self closeting of the LGBT community. Colombo-centric homosexual mainstream hardly ever leaves its elitist cocoon. Even though I do not wish to underrate the work that is being done by the existing organizations, grassroots level alternative organizations are necessary to take gay activism to a national level.
I have suggested in this article that homosexuality should be ‘issufied’ – i.e. it should be made an issue. This does not suggest that homosexuality is not already an issue; rather my point is that it is not an issue because society does not acknowledge it as such. Same politics are at work when a Sinhalese argues that ethnicity is not an issue or when the elite declare that class is not an issue. The ability to overlook differences is the prerogative of the privileged group. Homosexuality should be recognized in order to empower the homosexuals…. Issufying homosexuality entails the potential danger of exciting homophobia at a macro-level, but this would inevitably happen as more and more homosexuals are opting to be openly gay. The Sri Lankan body-politic would soon have to perceive homosexuality, and acknowledge it as a part of the social-fabric.”
E. UNHCR
“LGBTI individuals may, depending on the individual circumstances of the case, be in need of international refugee protection often, but not exclusively, on account of belonging to a particular social group. Depending on the circumstances of the case, the same may apply to partners and other dependants of individuals with the above profile. LGBTI individuals cannot be expected to be discreet about their sexual orientation or gender identity in order to avoid persecution”.
“The absence of precise and specific information or reported incidents relating to the treatment of these persons should not be understood as indicating an absence of risk of serious harm.”
Persons undergoing gender reassignment have reportedly had difficulty in amending government documents to reflect their reassigned gender.
F. Freedom House
“Members of the LGBT (lesbian, gay, bisexual, and transgender) community face social discrimination and some instances of official harassment. Sex “against the order of nature” is a criminal offense, though cases are rarely prosecuted.”
G. Canadian IRB
“The Executive Director of EQUAL GROUND expressed the opinion that LGBTIQ people in the Tamil or Muslim communities may face greater difficulties because these groups are "ultra conservative" (EQUAL GROUND 7 Dec. 2011). However, she also noted that the LGBTIQ community is "increasingly" threatened by Sinhalese Buddhist nationalists, among others, who claim that "homosexuality is a western value which erodes Sri Lankan culture, morals and family values" (ibid.).
The Executive
Director also provided the following information regarding socio-economic and
regional differences within Sri Lanka
with regard to the LGBT community: [T]here
is a huge difference in how people are treated based on their socio-economic
status. LGBTIQ persons in the rural areas for example, suffer enormous
hardships - stigma and discrimination is rife – and they cannot be openly gay
or enjoy a normal same sex relationship. Most rural gay men especially, migrate
to urban areas where there are more opportunities for them to meet others who
are like them and have relationships, albeit on the down low. (ibid.)
The Xinhua news
agency states that most homosexuals in Sri Lanka
live in the larger cities (21
Sept. 2011). In further correspondence with the Research Directorate, the
Executive Director of EQUAL GROUND stated that "a significant number of
LGBT persons" live in Colombo (EQUAL GROUND 12 Dec. 2011). The Executive
Director added that acceptance levels in Colombo were "slightly
better" that those of other areas, but that "[i]n most places in
Sri
Lanka
, marginalization and homophobia are the norm" (ibid.).”
“A report on the
situation of lesbian and bisexual women in Sri Lanka
produced by EQUAL GROUND,
based on research conducted between April 2010 and June 2011, states that
lesbian and bisexual women are more vulnerable than gay and bisexual men
because women are not seen as equal. According to the report, lesbian and
bisexual women are ostracized by their family and society and some have been
driven to suicide … The report adds that lesbian and bisexual women are often
subject to a combination of homophobic violence, gender-based violence, and
domestic … According to the report, lesbian and bisexual women face the
greatest risk of violence from their parents, siblings and relatives, who attempt
to "institutionalize these women, restrict them from leaving the home,
withdraw economic and other necessary support, arrange unwanted marriages and
express other forms of physical aggression" … The report also notes that
these women are dependent on their families and some may feel powerless in
confronting violent threats by their family members or threats to report them
to the police.”
“Sources report that it is difficult to amend the sex classification on official documents (US 8 Apr. 2011, Sec. 6; WSG Jan. 2011, 5). According to sources, individuals must first have their sex on identity documents changed before going through sex-reassignment surgery (ILGA 10 Apr. 2011; WSG Jan. 2011, 5). The WSG shadow report states that a medical practitioner "risks his/her license if he/she performs sex altering surgery on a client whose birth certificate notes his/her sex at birth" (ibid.). WSG adds that … transpersons have spoken of the reluctance of employers to offer them employment. In one case a man had been dismissed from his employment after he had been ‘discovered’ by his employer. …According to WSG, there have been court cases against women accused of "'misrepresentation'" and "'impersonation'" for "'disguising'" themselves as men and cases of transwomen arrested for "misleading the public" …”
H. United Kingdom Foreign and Commonwealth Office
“Lesbian, gay, bisexual and transgender rights
Homosexuality remains illegal under Sri Lankan law. The British High Commission supported lesbian, gay, bisexual and transgender rights activists in raising concerns over harassment.”
I. United Kingdom Home Office UKBA/UKVI
“There is a sizeable
gay population in Sri Lanka
but many gays and lesbians cannot come to terms
with themselves due to family pressures and behavioural expectations imposed by
Sri Lankan culture. A gay identity does not make much sense to many
homosexuals. Male homosexuality in any event is illegal. There is no gay scene
in the western sense in
Sri Lanka
but there are several gay groups who lobby
for reform and provide support and counseling to gays and lesbians. Many of
these groups also organise occasional gay events such as parties and outings.
Sri
Lanka
has a lot to commend it but we would not recommend it as a specifically
gay destination. …Homosexual acts between men, regardless of age, are
prohibited under Section 365a of the Penal Code with a penalty of up to 10
years imprisonment. The law is not enforced and there have been no prosecutions
for 50 years but in a largely Buddhist country homosexuality is seen as a sin.
Local gay groups complain that the mere existence of the law is enough for the
police and anti-gay groups to brand gays and lesbians as "perverts"
and lawbreakers. They argue it is discriminatory and stigmatises gays and
lesbians leading to abuse of gay people in their community. In 1996 The Sri
Lankan gay group "Companions On A Journey" was established. During its
6 year existence [CoJ] has suffered harassment including assaults on its
founders, death threats and the stoning of its offices. There is still rampant
homophobia in
Sri Lanka
for example the Sri Lankan Press Council ruled in
favour of a paper that published a letter saying convicted rapists should be
let loose amongst a lesbian conference to give them "a taste of the real
thing".”
“… Homosexuality is
illegal in Sri Lanka
but there is no evidence of systematic state persecution. Opportunistic
targeting, societal hostility and discrimination against LGBT persons does
exist and in individual cases may reach the Article 3 threshold.”
J. Other materials and Press reports
“However, Rosanna
Flamer-Caldera, Executive Director of Equal Ground, a nongovernmental
organisation which fights for human and political rights of the Lesbian, Gay,
Bisexual, Transgender, Intersex and Questioning (LGBTIQ) community of Sri
Lanka
, is cautious about the ruling. “While we are hugely thrilled by the
decision and it gives us a lot of hope, we also have to be cautious in moving
forward,” she said. In the past six months, Flamer-Caldera and her colleagues
have received death threats by phone and emails from what she describes as
‘Muslim fundamentalists.’ “We did a workshop in the eastern region (where there
is a sizable concentration of Muslims) and one ‘gentleman’ accused us of trying
to promote homosexual behaviour. Since then we have had some threatening calls
and emails,” she said.
Between 8 to 10% of Sri
Lanka
’s 20 million people are believed to be gay, according to activists. De
Rose, the first gay person to come out, said activists were planning a
consultation in coming weeks in the capital Colombo, bringing together the gay
community from across the country in an interaction with stakeholders like
judges, parliamentarians, religious leaders and decision-makers. “We hope to
attract the participation of about 200 people from all over the country. Indian
experts are also attending,” he said, adding that they plan to re-examine the
Sri Lankan issue in the light of the Indian judgment. “I have found Sri Lankan
leaders supportive of our rights to live the way we want but that is their
individual view. That view is not common on an organized scale,” he said,
noting that same-sex couples are always worried about public opinion and want
to “run away abroad.
A sexual rights
activist from Women’s Support Group (WSG) said they were overjoyed by the
ruling but also expressed concern that there have been some appeals filed
against the judgment. “We need to wait and see what happens,” she said. WSG,
along with CoJ and Equal Ground, is among the more prominent groups fighting for
the rights of LGBIT community. There were others reasons for not being
‘over-excited’ over the ruling. “Up till 1995, the subject of this law was only
men. However, the 1995 amendment to Sri Lanka
’s Penal Code made it
‘gender-neutral’ and now the Penal Code criminalizes both male and female
homosexual sexual activity,” according to a statement on WSG’s website. “That’s
why we need to be cautious (in trying to change the laws,” said the sexual
rights activist. Flamer-Caldera says, “There have been discussions with civil
society on how to move forward.”
While there is a higher level of tolerance and more awareness in Colombo for gay community’s rights, there is still ignorance of these issues at grassroots level. However De Rose believes there is much more acceptance from society over their rights now compared to when he launched the organization in 1995. …
The WSG website says LGBT people are subject to discrimination on many fronts. They face blackmail by others, face threats to their family, career, and their life while some have been thrown out of their homes and others have lost their jobs. It says the legal system and the stigma associated with being ‘different’ in Sri Lankan society makes it difficult for members of the LGBT community to come out of the closet. “Around you, there are many people who hide their sexual and gender identity from those around them due to the fear of what may happen to them if their identity is known,” it said.”
The Indian decision was subsequently overturned by the Indian Supreme Court (see MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC)).
“Two weeks back,
during an annual gay pride celebration held in Colombo, Rosanna Flamer-Caldera
made a passionate plea for equal rights for the Sri Lankan gay and lesbian
community. “…We are not only hair dressers and drag queens, we are also
doctors, journalists, artists, lawyers, accountants, nurses….we are everywhere
and anywhere and we continue to strongly advocate on behalf of all of us and
mainly the mostly invisible Lesbian, Gay, Bisexual and Transgender community of
Sri Lanka
. …We want to celebrate our lives, our loves and most of all – who
we are. We do not want to be in closets anymore. We shouldn’t have to be in
closets to begin with! Embrace your uniqueness. Embrace your sexuality. Embrace
diversity. Be proud of who you are, whatever your sexual orientation may be. Closets
are for clothes. Step out. Be Proud.”
Not all the members of the Sri Lankan gay and lesbian community have come out of their closets. But, those who dared to come out have organized themselves in self-help groups, which campaign for human and sexual rights of the LGBT community. They help their members in distress, provide counseling and legal aid, conduct ballroom dancing sessions, screen movies and celebrate annual events of the calendar of the world wide LGBT community. Going a step further, they also promote HIV AIDS awareness in the wider social spectrum.
Flamer-Caldera’s plea for equal rights has, at last, caught the attention of political powers. Prime Minister D.M Jayaratne, last week told a daily English newspaper that the government was prepared for a dialogue with the local gay and lesbian community. The prime minister said that gay and lesbian activists should explain what they mean by equal rights. Flamer-Caldera says local activists have requested an appointment with the prime minister. …Flamer-Caldera says that LGBT activists want the government to expunge the section of the penal code which criminalizes homosexuality.
“It is silly to label homosexuality as being a western concept. It is in existence in the animal kingdom from time immemorial. It is, in fact, an archaic law which is ‘ imported’ from the west.” Second, according to Flamer-Caldera, local LGBT activists urged that the constitutional guarantees of non-discrimination be extended to include gender identity and sexual orientation. “We want to be treated like other citizens. We are all human. We are all equal,” she says.
What about same sex
marriages and civil unions? She says it is too far off. “We take a step at a
time. Same sex marriages are not in our agenda now.” That would stoke the fears
of the prime minister, who deemed same sex unions as incompatible with local
culture. …In 2001, Sri Lanka
’s notorious Press Council ordered Sherman de Rose,
an activist of the founding LGBT rights group, Companion on a Journey to pay
legal fees to the Island newspaper, turning down a petition against the
publication of a letter which advocated lesbian women to be raped by convicted
rapists to ‘cure’ them. Rejecting the petition, the Press Council held that
lesbianism was, “an act of sadism” and that homosexuality was an immoral and
abnormal crime.
That however had unexpected positive fallout. It drew public attention to the rights of the gay community. Flamer-Caldera says gays and lesbians don’t ask for special rights. “We ask to be treated like follow citizens. We asked to be accepted for who we are.” That, of course, isn’t too much to ask for.”
“Sri Lankan authorities on Wednesday said that there has been an increase in the number of homosexuals in the country despite its strong Buddhist culture and traditions. A survey conducted by the Sri Lankan Health Authorities have revealed that there are over 30,000 homosexuals and over 40,000 prostitutes in the island amongst its estimated 20 million population.
Out of these figures,
more than 8,000 prostitutes are found in the capital Colombo where illegal
brothels continue to operate, Sri Lankan Medical Authorities said. Prostitution
is illegal in the island nation and has become a severe problem for the local
police who continue to carry out raids and arrests on secretly functioning
brothels in many parts of the country. Homosexuality is also a taboo subject in Sri
Lanka
where socially it is unaccepted and most often seen as an offence.
According to Sri Lankan Medical Authorities, while the numbers for
homosexuality have increased, most homosexuals are found to be in school and
university hostels.
Most homosexuals are
found in big cities in Sri Lanka
and health authorities have decided to conduct
island wide awareness programmes to prevent the spread of sexually transmitted
diseases amongst such people. Director of the National Aids Control Unit in
Sri
Lanka
, Dr. Nimal Edirisingha told Xinhua that while these were the estimated
figures of homosexuals and prostitutes in the country, the numbers could be
higher. According to Dr. Edirisingha, there are also 1388 people affected with
HIV/AIDS in the country and this figure has remained the same for the past few
years. (Xinhua)”
“Was it a new
beginning for Sri Lanka
? Does this hint at a degradation of social values? What
will happen to the Sri Lankan culture? So many questions were raised when media
revealed a homosexual marriage ceremony at Ratmalana last week. Sexuality and
gender issues are still not a comfortable topic in public discussions in
Sri
Lanka
. In fact homosexuality is still considered a taboo. Not speaking about
homosexuality is not going to solve the issues. Thinking that the ‘issue’ of
homosexuality will simply disappear if it is not talked about is wishful
thinking. People are in doubt about the ‘right attitude’ they should have
towards the LGBT (Lesbian, Gay, Bi sexual and Transgender) community. Some are
confused, not knowing which side to take. Some try to rationalize it where some
become homophobic. …
Lawyer, Human Rights
Activist Shiral Lakthilaka said that Sri Lanka
should also consider the human
rights aspect of the issue. “When you speak about homosexuality in
Sri
Lanka
you have to take three aspects into consideration; the human rights
aspect, religious aspect and the Victorian mentality among the Sri Lankans,”
Lakthilaka stressed. “When homosexuality is spoken about in the human rights
perspective it falls under the category of minority rights and group rights.
This is a subject which should come into broader discussions. There should be a
platform where sexual minorities could speak of their issues,” he added. The
religious position in
Sri Lanka
does not give any leniency toward LGBT
community. All religions in
Sri Lanka
have generally perceived that homosexual
behavior is a sinful act. Christianity, Hinduism as well as Islamic community
consider homosexuality as a sinful act. There are no explicit rules for lay
persons prohibiting homosexual behavior in Buddhism. Yet, since homosexuality
is against social standards in the country, it could be considered as sexual
misconduct …There are few organizations and movements offering help for the
LGBT community and most of them are online support groups. Since the country
doesn’t have a proper screening process for these support groups and
organization, it is hard to trust which group is genuinely offering help and
which groups have hidden motives which could cause more harm than good.
Legalizing homosexuality or not it would be better if the country could have a
proper method to monitor these mushrooming support groups.
Another group of people harbor the opinion that homosexuality is becoming a trend in society. Some say homosexuality is only an issue in Colombo. On one hand if homosexuals are claiming that they are not special, it is quite confusing why homosexuals themselves are trying to show off their ‘pride’. On the other hand if homosexuality is normal and cannot be changed or ‘cured’, is it ethical to condemn their sexual preference?
Although the majority of the Sri Lankan community consider ‘homosexuality’ as a
special issue where solutions should be obtained, the real question is the
danger innocent young people face, due to the lack of awareness on sexual and
gender issues including homosexuality. If they are not properly educated they
will seek information through unreliable sources.”
“The former head of Human
Rights at the Commonwealth, Dr Purna Sen, has condemned the Sri Lankan
Government over the harassment of activists campaigning for LGBT rights.
Speaking
at the Labour Party Conference in Brighton, Dr Sen, who is Chair of the
Kaleidoscope Trust, said it was “wholly unacceptable for the country preparing
to host Commonwealth leaders in a few weeks time to try to silence the LGBT
community and human rights defenders through threats and intimidation.” The
Commonwealth Heads of Government Meeting (CHOGM) takes place in Sri
Lanka
in November.
“It is imperative
that Sri Lanka
as the CHOGM hosts must adhere to the principles underlying the
Commonwealth and respect the right to active and safe democratic engagement by
all human rights defenders,” Dr Sen added. “If this kind of harassment
continues then both the Secretary General and the Heads of Government Meeting
in Colombo must be prepared to speak out publicly and condemn any infringement
on the rights of LGBT people whether in
Sri Lanka
or anywhere else in the
Commonwealth.”
She said: “The recently adopted Commonwealth Charter states it is an association ‘devoted to improving the lives of all peoples of the Commonwealth’. This puts an obligation on the organisation to act against this sort of harassment.” The Kaleidoscope Trust, based in London, has received reliable reports that Sri Lankan activists have been threatened with arrest and organisations have been warned they could be closed down if they continue to advocate for LGBT and human rights.”
“Sri Lanka
witnessed
its first gay wedding this month followed by a state crackdown that saw the
bride and groom, their relatives and other guests at the event in capital city
Colombo arrested, Sri Lankan media reported. Neth FM Balumgala, a local radio
station, said the wedding was held in the capital on 16 August, observing all
the traditional rituals, including the exchange of rings and vows. The young
bride was a school student and his mother and relatives attended the event, the
radio station said. Soon after the ceremony, officials from the anti-corruption
unit swooped down on the house, reportedly used as a meeting place by the gay
community, and arrested the bridal pair as well as bystanders. Police also
seized videos and books from the house. The radio station quoted neighbors as
saying that the majority of people who used to frequent the house were young
male students. A local television channel also reported the incident though the
mainstream media remained silent. …There was no immediate news of what had
happened to the people arrested.
The local media is
mostly anti-homosexuality, taking pot shots at gay parades and gay fashion
shows organized by advocacy groups. Earlier, it had attributed anti-gay
sentiments to President Mahinda Rajapaksa over the appointment of Norway’s
new ambassador to Sri Lanka
. She was reported to be a lesbian and the media
said Rajapaksa was determined that her partner would not be allowed in. He was
reported as saying that the Buddhist nation would lose its identity if it
allowed same-sex activities.”
“Sri Lankan gay activists have been threatened and ordered to keep silent as Commonwealth leaders gather in the country. The LGBTI campaigners say they have been forced underground, reflecting a wider crackdown on civil society ahead of the Commonwealth Heads of Government Meeting (CHOGM) from tomorrow (15 November). Commonwealth leaders have refused to discuss gay, trans and intersex issues at the summit – despite the fact 80% of member countries still criminalize homosexuality. GSN has learned Sri Lankan activists have been warned to stop their activities ahead of CHOGM.
Some individuals have been threatened and told they may be in danger if they do not comply. …The Sri Lankan LGBTI activists don’t want to reveal any more details of the threats against them, for fear of angering the government and putting themselves at more risk.”
“Colombo’s gay scene suffered a setback when the government beefed up security ahead of the Commonwealth Heads of Government Meeting (CHOGM), forcing gay men out of some of their favourite hangout places. Now with the security having been scaled down, they are back. But, doctors have raised concern over an increased risk of Sexually Transmitted Disease (STD) among gay men. Societal prejudice and stigma have discouraged gay men from seeking medical attention. Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning (LGBTIQ) activities are relatively thriving in isolated parts of Colombo and also in its suburban outskirts. …The list goes on with the other popular hangouts of gay men, …which provide the only sexual, physical, emotional and economical relief for most MSMs [men having sex with men]. In schools, hostels, hospitals and army barracks, gay sex is a mutually beneficial relationship. In prisons, however, there is sometimes sexual violence of the non-consensual nature.
Two national surveys
into the homosexual activities of men were conducted recently, neither of which
however, included foreigners in the country. The first, which took one and a
half months to complete, was carried out with the assistance of the involved
communities. The research was conducted in four Districts, Colombo, Anuradhapura, Nuwara Eliya and Batticaloa and the results were then extrapolated to the
entire country. In 2010, there were 35,000 MSMs in Sri Lanka. Based on hitherto
unpublished data, in the most recent estimation, which took one week to finish
and was based on ‘hot spots’, a conclusion was reached that there were 8,000
MSMs in the country. The data of the two size estimations cannot be compared as
the methodologies vastly differed.”
“National STD/AIDS Control Programme Director Dr. Sisira Liyanage added “There is an increasing trend among MSMs, particularly in the last quarter of this year, which has registered HIV positive cases as 20% when earlier it was 10%. It may not be a question of good or bad or right or wrong but MSMs are mentally and socially different people.” While not all MSMs are MSWs or male prostitutes, it is well documented that this is a high risk group, as far as contracting HIV and HIV prevention is concerned, because of the risky behaviour they exhibit or are exposed to or are involved in.
The term male prostitute or male sex worker is a convoluted one. It covers a broad range of stigmatized gender identities and discriminated sexual orientations, diverse characters and economic practices, dominated by medieval laws and maligned policies. While it is thought odious and loathsome, deviant and perverted, it is also pilloried and abhorred in equal measure, and is capable of evoking revulsion and provoking silence. Some, in their ignorance, even consider it a disease, a curable one at that. Yet, it is a fetishized subject – a literal elephant in the room. Entering the rough trade and taking a look at this Sadistic world, harassed by shadows and sarees, in search of those bonded by the love that dares not speak its name. H.H. Sarath Kumara, a MSM gets the final word: “Sexuality is private.”